Un­der­stand­ing re­la­tion­ship be­tween Joint Dec­la­ra­tion and the Ba­sic Law

China Daily (Hong Kong) - - COMMENT -

Con­tro­versy is a uni­ver­sal phe­nom­e­non — be it on po­lit­i­cal, le­gal, so­cial, cul­tural or eco­nomic is­sues — and it does not al­ways pro­duce a cor­rect an­swer. This has been true with the case of the Si­noBri­tish Joint Dec­la­ra­tion, signed by the then pre­miers of both coun­tries in 1984 and rat­i­fied by both na­tional leg­is­la­tures in 1985.

More than 30 years have lapsed but the op­po­si­tion still tends to think Bri­tain al­ways has an obli­ga­tion and the power to su­per­vise im­ple­men­ta­tion of the Joint Dec­la­ra­tion as a sig­na­tory party. On the other side, the proestab­lish­ment camp be­lieve both sign­ing par­ties have ac­com­plished their mis­sions upon Hong Kong’s han­dover or at most not later than the be­gin­ning of this cen­tury, so the Joint Dec­la­ra­tion has had no role or func­tion since then.

Both views are par­tially cor­rect and par­tially in­cor­rect. The Joint Dec­la­ra­tion was con­sid­ered a treaty when it was signed and will al­ways be un­til it lapses; the ques­tion should be: How it should be ex­e­cuted and whether there is any su­per­vi­sory ar­range­ment there.

There are two types of treaties: Self-ex­e­cut­ing and non-self-ex­e­cut­ing. A self-ex­e­cut­ing treaty can be di­rectly en­forced with­out do­mes­tic leg­is­la­tion, and the party to the treaty may su­per­vise and be su­per­vised as to its obli­ga­tions, whereas a non-self-ex­e­cut­ing treaty re­quires leg­is­la­tion to im­ple­ment be­fore its pro­vi­sions can be en­forced.

If the Joint Dec­la­ra­tion had been a self­ex­e­cut­ing treaty, then either party might have in­quired an­other party for its ex­e­cu­tion. On the other hand, had the joint dec­la­ra­tion been a non-self-ex­e­cut­ing treaty, then both par­ties might not be able to make such a di­rect in­quiry on each other’s en­force­ment, for such a treaty had to be im­ple­mented through do­mes­tic leg­is­la­tion which would be re­garded as an in­ter­nal mat­ter of the na­tions so con­cerned. One might in­quire, how­ever, whether there were dis­crep­an­cies be­tween the treaty and the do­mes­tic law.

Un­for­tu­nately the Joint Dec­la­ra­tion as a whole is nei­ther self-ex­e­cut­ing nor non-self­ex­e­cut­ing but a mix­ture of both. Only a small por­tion of the Joint Dec­la­ra­tion is self-ex­e­cut­ing, for ex­am­ple, Ar­ti­cle 1 stated that the gov­ern­ment of the Peo­ple’s Repub­lic of China had de­cided to re­sume the ex­er­cise of sovereignty over Hong Kong with ef­fect from July 1, 1997; and Ar­ti­cle 2 stated that the gov­ern­ment of the United King­dom de­clared that it would re­store Hong Kong to the PRC with ef­fect from July 1, 1997. An­nex II “Sino-Bri­tish Joint Li­ai­son Group” is also self-ex­e­cut­ing.

Most of the Joint Dec­la­ra­tion is, how­ever, non-self-ex­e­cut­ing. For ex­am­ple, Ar­ti­cle 3 with 12 items of ba­sic poli­cies of the PRC re­gard­ing Hong Kong and An­nex I “Elab­o­ra­tion by the PRC’s gov­ern­ment of its ba­sic poli­cies re­gard­ing Hong Kong” are non-self-ex­e­cut­ing. An­nex The au­thor is a Hong Kong vet­eran com­men­ta­tor and PhD in law, Pek­ing Univer­sity. III “Land leases” is also the same. By virtue of Ar­ti­cle 3(12) of the Joint Dec­la­ra­tion, the ba­sic poli­cies and the elab­o­ra­tion in An­nex I will be stip­u­lated in a Ba­sic Law by the Na­tional Peo­ple’s Congress and they will re­main un­changed for 50 years. An­nex III would also be so im­ple­mented in this law.

There­fore, both par­ties might su­per­vise the per­for­mance of each other’s obli­ga­tion merely on a few pro­vi­sions of the Joint Dec­la­ra­tion that were self-ex­e­cut­ing, but th­ese pro­vi­sions had been fully im­ple­mented either on July 1, 1997 or Jan 1, 2000 for the re­main­ing works, from the view­point of a self-ex­e­cut­ing treaty.

As the ma­jor­ity of the Joint Dec­la­ra­tion is non-self-ex­e­cut­ing, dis­crep­an­cies be­tween the Joint Dec­la­ra­tion and the Ba­sic Law might ex­ist if both par­ties had failed to co­op­er­ate. It was re­ported dur­ing the draft­ing of the Ba­sic Law that both par­ties had al­ready ex­changed views on the draft of the Ba­sic Law, to avoid un­nec­es­sary con­flicts af­ter the Ba­sic Law be­came ef­fec­tive. The sin­cer­ity on the Chi­nese side must be ac­knowl­edged, rec­og­nized and ad­mired in this re­spect.

Bri­tain can­not ex­er­cise any su­per­vi­sory power on the non-self-ex­e­cut­ing part of the Joint Dec­la­ra­tion, con­cern­ing the ba­sic poli­cies and their elab­o­ra­tion by the Chi­nese gov­ern­ment in­cor­po­rat­ing in the Ba­sic Law, but that does not nec­es­sar­ily mean there is no re­la­tion­ship be­tween the Joint Dec­la­ra­tion re­gard­ing the said ba­sic poli­cies and their elab­o­ra­tions, and the Ba­sic Law.

Pur­suant to Ar­ti­cle 159(4) of the Ba­sic Law, it is re­quired that “No amend­ment to this Law shall con­tra­vene the es­tab­lished ba­sic poli­cies of the PRC re­gard­ing Hong Kong.” It is fur­ther clar­i­fied that “The ba­sic poli­cies of the PRC re­gard­ing Hong Kong have been elab­o­rated by the Chi­nese gov­ern­ment in the Sino-Bri­tish Joint Dec­la­ra­tion” as men­tioned in para­graph 2 of the Pre­am­ble of the Ba­sic Law.

That is to say, any amend­ment to the Ba­sic Law should be sub­jected to and re­strained by the ba­sic poli­cies and their elab­o­ra­tion es­tab­lished by the cen­tral gov­ern­ment who had will­ingly put the said ba­sic poli­cies and their elab­o­ra­tion down in the Joint Dec­la­ra­tion. So it may only be cor­rect to say for cer­tainty that the poli­cies and their elab­o­ra­tion re­gard­ing Hong Kong will have le­gal ef­fects on any amend­ment to the Ba­sic Law, and noth­ing more.

@BRIANLHY_ / IN­STA­GRAM

Two boys race for the ball while play­ing soc­cer at the Blake Gar­den field, with old build­ings of She­ung Wan pro­vid­ing a back­drop.

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