Mr Powell, HKD
CONFIDENTIAL
6
HKIC
040/12.
1
X lu
HONG KONG AGREEMENT:
1.
ARTICLE BY CHINESE LEGAL EXPERT
Paragraph 3(3) of the Joint Declaration contains the following sentence
"The laws currently in force in Hong Kong will remain basically unchanged."
Annex I(II) begins with the following sentence
2.
"After the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature."
The first of these sentences is ambiguous, but it could not be changed because it was part of the hallowed Chinese 12 points. The second sentence records one of our most difficult and hard-fought compromises.
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yogu uerpo.
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In Hong Kong "Ming Pao" of 4 December 1984 there appeared the text of a report entitled "Excerpts from talk by Director, Ji Pengfei... on 18 October in the Great Hall of the People." It includes the following sentence -
"The so-called laws currently in force, or former laws, refer to those laws which were in force before the initialling of the 'Joint Declaration' rather than those laws (including new laws in the transitional period) in force before the 'Joint Declaration' becomes effective."
This interpretation represents a dangerous fallacy. It could be rebutted on the following lines.
4. The sentence in paragraph 3(3) of the Joint Declaration is ambiguous. However this ambiguity is cured by the first sentence of Annex I(II), which spells out in detail which laws are to survive on 1 July 1997. The opening words of the sentence ("After the establishment of the Hong Kong SAR") set the period of time to which this provision relates, i.e. the period beginning on 1 July 1997. A natural interpretation of the immediately following words ("the laws previously in force") is that the phrase refers to those laws which were in force immediately before the beginning of that period, i.e. those in force on 30 June 1997. This is the correct interpretation. There would be no point in preserving the existence of laws which, prior to 30 June 1997, had been repealed, e.g. in the period between 1984 and 1997.
CONFIDENTIAL
/5.