13.
3)
On the basis of this message, we can deduce that the Beijing officials would rather admit the existence of the 'proviso' in verbal explanations
than commit it to writing expressly in the Constitution.
'Doctrine of Prohibition' or 'Negative Formulation': According to the aforesaid article 'A Ramble on Participating in the Drafting Committee' by Mr Louis CHA, a Hong Kong member of the Drafting Committee had, in Beijing, made reference to the doctrine of prohibition, a term in the science of law, advocating that the Basic Law should make detailed provisions to prevent the Central Government from interfering in matters like the administration, judicature, legislation, immigration policy and economic policy, of Hong Kong. In connection with this issue, Mr KE Zaishuo, a member of the Sino-British negotiation team, had explained that in the course of the Sino-British talks, detailed deliberations had been made, but it was finally resolved that a 'positive' approach
would be taken. Annex I of the Sino-British Joint
Declaration provides that
Laws enacted by the Regislature (of Hong Kong) which are in accordance with the Basic Law and legal procedures shall be regarded as valid.' In other words, any laws that run counter to the above are declared 'null and void'. The explanation given by Mr KE Zaishue indicates that in the Chinese sense of prohibition by prescribing any thing as 'valid', the law automatically declares other things as 'null and void'. This is the so-called 'positive' approach. Such an approach happens to run counter to the basic mode of Hong Kong's existing legal system which adopts a 'negative formulation'. For example, by spelling out in the Basic Law the areas in which the Central Government is not allowed to interfere, or alternatively, by specifying
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