[Congressional Record Volume 141, Number 97 (Wednesday, June 14, 1995)]
[Senate]
[Pages S8302-S8303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


        VARIOUS ISSUES REGARDING THE PEOPLE'S REPUBLIC OF CHINA

  Mr. THOMAS. Madam President, as the chairman of the Subcommittee on 
East Asian and Pacific Affairs, I would like to speak this morning on 
two issues concerning the People's Republic of China; specifically, 
Hong Kong and our embassy in Beijing.
  First, Hong Kong Governor Chris Patten contacted me last Friday to 
inform me that his government and the government of the People's 
Republic of China had finally reached an agreement on establishing the 
Court of Final Appeal [CFA]. He was kind enough to send me a copy of 
the agreement, as well as a copy of his statement to the Hong Kong 
Legislative Council.
  As my colleagues know, the establishment of the CFA has been one of 
the major sticking points in the negotiations over the transition of 
Hong Kong from British to Chinese sovereignty in 1997. Hong Kong 
presently operates under a British legal system based on statute and 
common law, and the judiciary is a separate, independent branch of 
government. These legal traditions provide substantial and effective 
protections against arbitrary arrest or detention, and ensure the right 
to a fair and public trial. Aside from the legal protections 
individuals enjoy under this system, Hong Kong's transparent and 
predictable legal system and regulatory scheme has been a major draw to 
businesses. They know ahead of time what statutes govern their actions, 
and that their contracts will be enforced. The continuance of these 
laws after 1997 will be a key factor in the territory's ability to 
maintain its promised high degree of local autonomy and its attraction 
to business.
  Final trial court decisions in Hong Kong are now appealable to the 
Supreme Court, and then to the Privy Council in London. There is a 
well-founded concern that, upon retrocession, the protections offered 
by the present legal and appellate systems might disappear to be 
replaced by a more ``indigenous'' system where the courts are 
instruments of the Party, contracts are honored only as long as they 
are useful, and final decisions are handed down from Beijing according 
to the whims of the leadership.
  In an attempt to ally these fears, in the Joint Declaration and 
subsequent [[Page S8303]] discussions the People's Republic of China 
and United Kingdom agreed to establish a local CFA before 1997 to 
replace the Privy Council. Protracted negotiations between the parties, 
however, failed to produce a mutually agreeable plan for the Court's 
implementation. With 1997 looming and fears about the consequences of 
the lack of a court at the time of retrocession, the Hong Kong 
Government unilaterally prepared a draft bill for introduction in the 
Legco.
  Beijing refused to endorse the draft, and both sides spent time 
pointing the finger at the other, while it languished. In March, in 
response to statements by Governor Patten that the Legco might 
unilaterally establish the CFA without waiting for Chinese approval, 
the People's Republic of China stated that it would dismantle any court 
established without its OK. This left the Hong Kong Government with the 
Hobson's choice: either leave it to China to decide when and how the 
court would be established after 1997, or go ahead with the draft bill 
and create a serious dispute with the People's Republic of China that 
would have damaged investor and citizen confidence and left doubts 
about whether China would eventually just dismantle it.
  On June 1, however, the two sides began a new round of spirited 
negotiations which led to the June 9 agreement. The basic gist of the 
agreement is that the Hong Kong Government will procede to introduce 
its draft bill in the Legco, and that preparations for the Court should 
be made on the basis of the resulting legislation and completed in time 
for the Court to begin operating on July 1, 1997. It will not, however, 
begin operating before that date. Governor Patten noted on Friday that:

       What is vital is that we know now what kind of court will 
     be in place on 1 July 1997. That is what the Hong Kong 
     community and US and other foreign businessmen have been 
     calling for and I believe that the Chinese have come to 
     realise that it is vital to the maintenance of confidence in 
     Hong Kong. There will be dissentient voices, of course, but I 
     believe that the majority of the Hong Kong community and 
     international investors will welcome the agreement, and that 
     the Legislative Council will accept it.
       The bottom line is that, although it is not ideal, this 
     agreement does more to strengthen the rule of law after 1997 
     than any alternative course of action, and for that reason I 
     am convinced that it is the right way forward.

  While I find myself in some agreement with Governor Patten, as an 
outside observer I have four concerns with the agreement: the timing, 
jurisdiction, finality, and judicial independence issues. First, I 
regret that the Court will not begin to function until the day 
jurisdiction is transferred in 1997. If the Chinese had agreed to allow 
the Court to begin functioning as soon as enabling legislation could be 
passed, then the two sides would have had more than a year in which to 
see how the court operates and to work out through a consensus any 
kinks or shortcomings that became apparent. As it stands now, the Court 
will be jumpstarted cold in 2 years on July 1 without a ``test run.''
  My second concern involves the Court's jurisdiction. In the 
preliminary talks about the Court, the Chinese side was rather adamant 
that the jurisdiction of the CFA would not extend to acts of state. 
What Beijing sought to forestall by this provision was the spectre of a 
judicial branch based on English common law declaring void some tennet 
of the central government vital to the continuation of the Communist 
system. Unfortunately, the new agreement adopts the definition of ``act 
of state'' set out in Article 19 of the Basic Law, which has been seen 
by some as vague and thus capable of an overly expansive 
interpretation. The worry is that after 1997 the Chinese will simply 
qualify politically uncomfortable cases as touching on ``acts of 
state'' and therefore remove them from judicial review.
  Third, the provisions regarding judicial appointments raise some 
concerns. Under the Joint Declaration, judges appointed to the CFA were 
to be confirmed by the Legco. Moreover, the Court would be allowed to 
invite judges from other English common law jurisdictions to sit on the 
Court. These two provisions have fallen somewhat by the wayside under 
the new agreement. Now, it appears that the confirmation provision by 
the Legco has been removed. In addition, the parties adopted the 
limitation of foreign judges to one set out in what are known as the 
secret documents. Both of these are violative of the Joint Declaration.
  Finally, the parties appear to have largely glossed over what is 
known as the finality issue. The idea behind the CFA is that the Hong 
Kong citizens will have the final say about judicial decisions that 
effect them, and not some party cadre in Beijing. The reason is easily 
illustrated by a simple analogy: Wyoming citizens would not want 
decisions of their State supreme court on State laws to be subject to 
review by a bureaucrat in Washington. Yet, the finality of CFA 
decisions is still somewhat up in the air.
  Having made these observations, Madam President, as I have pointed 
out before decisions such as these are principally a bilateral issue 
between the People's Republic of China and the United Kingdom. If both 
sides have agreed to the new provisions, who are we to gainsay their 
decision? This is one area where, I believe, overly active moves on our 
part would for once justify the usual Chinese observation that we were 
meddling in their internal affairs. I would just hope, though, that the 
parties would note our concerns and perhaps work with each other to 
remove some of the remaining ambiguities and departures from the Joint 
Declaration.
  Madam President, I would also like to address another topic 
concerning the People's Republic of China today. It has come to my 
attention that our representative in the People's Republic of China, 
Ambassador J. Stapleton Roy, will be permanently leaving his present 
post next week to return to Washington and then move on to our Embassy 
in Jakarta, Indonesia. Yet, inexplicably, the Clinton administration 
has failed to even name a replacement, let alone forward his or her 
name to the Senate for confirmation, and has simply decided to leave 
the post vacant for an undeterminant period of time.
  Madam President, I am amazed and dismayed that the Clinton 
administration has decided to take such an ill-advised step--whatever 
the impetus. Leaving a post vacant in a small, relatively non-strategic 
country is one thing; but to do so in the world's most populous 
country, a country that is emerging as the economic engine that will 
drive Asia into the 21st century, is quite another.
  This is especially true at this time when our bilateral relationship 
is somewhat less than perfect.
  The Chinese are extremely displeased with our decision this month to 
admit President Lee Teng-hui of Taiwan, and have stated that the 
decision has seriously soured their view of our relationship. While 
they have cancelled and postponed several meetings as a sign of their 
displeasure, I am sure that we have not seen seen the full extent of 
their reaction.
  More importantly, the Chinese Government is itself in a state of 
flux. The move to replace the ailing Deng Xiaoping is, contrary to the 
beliefs of some, well under way. Jiang Zemin and his Shanghai 
compatriots are already moving to consolidate their positions, and 
other factions have begun their jockeying in turn. Under these 
circumstances, each and every move we make in relation to our Chinese 
friends--large, small, overt, or subtle--takes on a special importance.
  To allow our Ambassador to depart from Beijing at this time and leave 
our embassy floating without anyone at the helm seems to me to be the 
height of misjudgment. I hope that President Clinton will forward the 
name of Ambassador Roy's intended replacement in the very near future 
so we can get the nomination process rolling and fill this vitally 
important position.


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