CHAPTER TWO THE FRAMEWORK FOR CHANGE The Sino-British Joint Declaration on the Question of Hong Kong 1984 2.1 In 1982, Britain initiated negotiations with the People's Republic of China on the status of Hong Kong. Despite the fact that the nineteenth century treaties1 were not recognised by China, Britain's adherence to them and to the legal framework they provided necessitated some settlement which would accommodate the shortening leases in the New Territories. Those leases were due to expire in 1997. What began as a limited exercise in seeking an administrative extension to the lease in the New Territories2 quickly developed into a consideration of the whole territory and the redressing of China's humiliations in the nineteenth century. 2.2 For Britain, the 'permanent territories' of Hong Kong island and the tip of the Kowloon Peninsula were not viable without the New Territories which contained the basic necessity of agriculture, the bulk of the industry, the power supply and the airport of Hong Kong. The negotiations lasted two years. The agreement was initialled by Britain and China on 26 September 1984, endorsed by the Legislative Council3 of Hong Kong on 18 October 1984, subsequently debated and approved by the British Parliament, and signed by Britain and China on 19 December 1984. It entered into force on 25 May 1985. On 12 June 1985 it was lodged with the United Nations as a treaty. 2.3 In China, 1982-84 was a period of reformist opening, relatively expansive in its embracing of the West. Deng Xiaoping himself took a special interest in the negotiations over Hong Kong and defined the principle of 'one country, two systems' as a way of allaying British and Hong Kong concerns about the transfer and of preserving the economic prosperity of Hong Kong which he recognised as being so valuable to China's development. 2.4 However, these negotiations were conducted in secret, without reference to the wishes of the people of Hong Kong.4 China objected to the inclusion of Hong Kong representatives on the basis that they would create an unwieldy situation of a 'three legged stool'. The International Commission of Jurists has described the process as intolerable: [It was] ... intolerable for the British Government to transfer British citizens in Hong Kong to the jurisdiction of the People's Republic of 1 See para 1.7. 2 Initially, in Britain's view, the New Territories was the only area under contention as the island of Hong Kong and Kowloon had been ceded in perpetuity. 3 At that time comprised entirely of the Governor's nominees. 4 See for example, Hong Kong Human Rights Commission, Submission, p. S66; Jayawickrama, Submission, p. S322; The Frontier, Submission, p. S207. See also para 1.1 and footnote 1 in Chapter 1. 11 China without their own consent and without any opportunity having been given to them to participate in deciding their own future.5 2.5 There was a process of post-agreement ratification conducted by the British authorities after the Joint Declaration was signed. In September 1984, the Government set up an Assessment Office which sought to explain the inevitability of the agreement and the protections built into it for the continued autonomy of Hong Kong post 1 July 1997 and, therefore, after the fact, to develop a consensus in support of it. In the period between 26 September and 19 December, the Assessment Office in Hong Kong canvassed the opinion of Hong Kong people on the acceptability of the agreement. The Government, however, attempted to control the result by narrowing the range of options available to respondents when it suggested that the only alternative to accepting the draft was a unilateral takeover by China in 1997 without an agreement. ... It is not surprising, therefore, that the Office reported that most people found the draft agreement acceptable.6 2.6 It is worth noting however that, when the Committee visited Hong Kong in January 1997, many of the groups which spoke to the members expressed regret and dismay at this lack of consultation on whether the transfer should take place at all. 2.7 The Joint Declaration states that, under Article 31 of the Constitution of the People's Republic of China, Hong Kong will be established as a Special Administrative Region (HKSAR). In the opening paragraph, it characterises its purpose as an agreement that was 'conducive to the maintenance of the prosperity and stability of Hong Kong'. Section 3 of the Declaration outlines China's policies towards Hong Kong. It asserts the importance of Hong Kong to the 'national unity and territorial integrity' of China and states that Hong Kong will come 'directly under the authority of the Central People's Government (CPG) of the People's Republic of China'. Beyond these two statements, most of the rest of the Joint Declaration outlines the nature of and stresses the importance of the autonomy of Hong Kong. • Hong Kong will enjoy a 'high degree of autonomy', Article 3(2), and the policies agreed in the Joint Declaration will remain unchanged for 50 years, Article 3 (12); • it will be vested with 'executive, legislative and independent judicial power, including that of final adjudication', Article 3 (3); • the 'laws currently in force7 will remain basically unchanged', Article 3 (3); • the government of the HKSAR is to be composed of locals, Article 3 (4); 5 Quoted in Jayawickrama, Submission, p. S323. 6 Exhibit No. 7(d), Martin, Dr B G, Hong Kong in Transition, Research Paper No. 9, 1994, Parliamentary Research Service, Department of the Parliamentary Library, p. 12. See also survey evidence in Footnote 1 in Chapter 1. 7 Presumably this applies to laws as at 1 July 1997 when all these changes take effect. See Article 2 of the Joint Declaration, in Appendix 6. 12 • the chief executive will be appointed by the CPG on the basis of elections or consultations, Article 3 (4); • there will be continuity of personnel in the police and the civil service, Article 3 (4); • the 'social and economic systems' and the 'life style' of Hong Kong will remain unchanged, Article 3 (5); • all rights and freedoms8 will be ensured by law, Article 3 (5); • Hong Kong will remain a free port and a separate customs territory, Article 3 (6), will have a separate currency, Article 3 (7), independent finances, including taxation, Article 3 (8), and independent economic and cultural relations with other states, regions or international organisations, Article 3 (10); • Hong Kong will issue its own passports, Article 3 (10); and • it will maintain its own police force, Article 3 (11).9 2.8 The Annexes to the Declaration, which elaborate on its principles, serve to reinforce this emphasis on autonomy. Annex 1 notes that the legislature shall be 'constituted by elections', that the courts shall exercise judicial power independently and 'free from any interference', and that 'all' public servants can remain in employment after the establishment of the HKSAR. Much of the detail of the Annexes is devoted to the financial independence of Hong Kong and its capacity to negotiate independently a wide range of international agreements - on shipping, aviation, trade, tourism, cultural and sporting matters. 2.9 The Joint Declaration affirms that, until 30 June 1997, the United Kingdom has ongoing responsibility for the administration of Hong Kong and for its economic prosperity and social stability and that, in this, China promises cooperation (Article 4). 2.10 Finally, the Joint Declaration set up a Joint Liaison Group (JLG) to consult, discuss and exchange information on the transition. It was to operate from the time that the Declaration entered into force (27 May 1985) until 1 January 2000. Both Britain and China were to appoint a senior representative, of ambassadorial rank, and four other members as well as 20 supporting staff. It is notable that Annex II specifically stated that the JLG was not an organ of power; it could play no part in the administration of Hong Kong or the HKSAR nor have any supervisory role over that administration. 2.11 The Joint Declaration is a liberal document which covers the essential elements of an open society, albeit in broad and general terms. The International Commission of Jurists had one major criticism of it; that it did not specify that the chief executive should be a democratically elected office.10 The Declaration does suggest the appointment on the basis of 8 The list is very comprehensive - person, speech, press, assembly, association, travel, movement, correspondence, strike, choice of occupation, academic research and religious belief. 9 Exhibit No. 1(f), Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong with Annexes, Beijing, December 1984. Reproduced as Appendix 6 to this report. 10 Exhibit No. 2. Countdown to 1997: Report of a Mission to Hong Kong, International Commission of Jurists, 1992, p. 14 and Chapter VIII. 13 'election or consultations'. A further criticism that has become significant in the last five years is that the Joint Liaison Group lacked an arbitration mechanism to settle dispute between Britain and China. The Impact of Tiananmen Square 1989 2.12 The Joint Declaration foreshadowed the need to promulgate a law to translate the policies agreed in the Declaration into a constitution for Hong Kong. In June 1985, the Standing Committee of the PRC appointed a Basic Law Drafting Committee (BLDC). It consisted of 59 members, of whom 23, a minority, were from Hong Kong. They were not authorised by the people of Hong Kong and, as their numbers were reduced by resignations, expulsions and deaths, they were not replaced.11 The first draft, presented for consultation in 1988, elicited little popular reaction.