[Congressional Record Volume 141, Number 96 (Tuesday, June 13, 1995)]
[Senate]
[Page S8289]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         ADDITIONAL STATEMENTS

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 THE AGREEMENT BY GREAT BRITAIN AND CHINA ON THE ESTABLISHMENT OF HONG 
                      KONG'S COURT OF FINAL APPEAL

 Mr. MACK. Mr. President, the agreement reached last week by 
British and Chinese negotiators for a new Court of Final Appeal in Hong 
Kong is a grave setback to the rule of law in the territory. The deal 
violates the 1984 Sino-British Joint Declaration and its guarantees for 
Hong Kong's legal system by building on the 1991 secret deal on the 
Court, and using the 1990 Basic Law to make end runs around the Joint 
Declaration. In reaching this deal, the British side also conceded on 
the important matter of an early establishment of the court to prevent 
a gap in appellate jurisdiction in the colony during the transition 
from London's Privy Council to the new high court. Governor Patten 
claims that it was worth waiting until July 1, 1997, for the court to 
begin its work in exchange for an agreement. But this is really just 
postponement of a bad deal.
  Under the Joint Declaration, Hong Kong's courts are vested with the 
judicial power, including the power of final adjudication. Also, under 
the Joint Declaration, judicial independence is explicitly guaranteed, 
and the elected legislature must confirm appointments to the Court of 
Final Appeal. Each of these explicit promises made in the Joint 
Declaration, signed in 1984 by Margaret Thatcher and Zhao Ziyang, is 
expressly violated in last week's deal.
  I would like to address one aspect of the deal specifically--the 
provision under which Hong Kong's courts will, after 1997, be prevented 
from hearing and adjudicating matters known as ``acts of state.'' I 
specifically wish to address this because British and Hong Kong 
government officials are quietly advising that the act of state 
doctrine is extremely complicated and arcane. In effect, they are 
saying: ``Don't try and understand it.'' That is offensive.
  The ``acts of state'' doctrine is not difficult to understand. In the 
common law, it is a well-known and narrow category involving actions by 
one sovereign vis-a-vis another, such as a declaration of war, or a 
treaty. The last such case arose in Hong Kong in 1947.
  Under the terms of the agreement, Hong Kong's courts will be 
restricted from adjudicating ``acts of state'' as defined in the Basic 
Law of the Hong Kong Special Administrative Region. Beijing passed the 
Basic Law, often referred to as the colony's post-1997 constitution in 
1990. The Basic Law contains numerous and substantial violations of the 
Joint Declaration, yet the uncritical acceptance of the document by 
Great Britain has allowed the Basic Law to play an insidious role in 
the transition to PRC rule.
  Great Britain and the PRC have now agreed that Article 19 of the 
Basic Law will define the jurisdiction of Hong Kong courts. Article 19 
provides that ``acts of state such as defence and foreign affairs'' 
will be outside the courts' jurisdiction. The deliberate ambiguity of 
this formulation leaves the matter up to Beijing which has already 
assigned the power of interpreting the Basic Law to the Standing 
Committee of the National People's Congress rather than Hong Kong's 
courts. The Basic Law's definition of acts of state now endorsed by the 
British government of Hong Kong is vague and will, without a doubt, be 
used by the People's Republic of China to deny Hong Kong's courts the 
ability to hear and adjudicate challenges to the Beijing-appointed 
government after 1997.
  Both Britain and the People's Republic of China made specific and 
detailed commitments to preserving Hong Kong's legal system after 1997. 
In recent years, China has made its intentions regarding those 
commitments crystal clear: it will not honor them. Britain has been 
more subtle, styling itself as a defender of Hong Kong while engaging 
in diplomatic backsliding.
  Great Britain's failure to meet its commitments regarding the rule of 
law will irreparably damage its historical legacy in the colony. I hope 
that in light of the strong criticism and concern that have been 
expressed at the announcement of this deal, Great Britain will revise 
its legislation on the Court of Final Appeal to make it consistent with 
the Joint Declaration. Furthermore, Great Britain and the Hong Kong 
government should move with speed and conviction to repeal colonial 
laws and establish an official human rights commission.


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