CONFIDENTIAL
Hong Kong will have "high degree of autonomy", not "independence".
[For general use]
On maintenance of existing judicial/legal system, draft BL
clearly provides for continuation of present, common law system
(Articles 8 and 17), and for an independent judiciary (Articles
84-94). Power of final judgement also vested in the Hong Kong
courts (Article 81).
Have noted criticisms, on eg NPC's power to determine validity
of laws enacted by SAR legislature; application of laws enacted by
NPC; restriction on jurisdiction of SAR courts; interpretation of
Basic Law.
If particular concerns are strongly felt in Hong Kong,
confident Basic Law Drafting Committee will take them into account.
Need to remember this is first draft.
RELATIONSHIP BETWEEN BASIC LAW AND PRC CONSTITUTION?
Basic Law will provide clear definition of constitutional
relationship between Hong Kong and Central authorities. Will clearly
define areas in which SAR has autonomy.
This is improvement on present position where there are grey
areas, and where HMG retains theoretical ultimate right to direct Hong Kong Government across the board. The powers available to the Central People's Government after 1997 will be more closely defined
and limited to specific areas.
Note also that Basic Law is quite clear (Article 4) that
socialist system and policies will not be practised in SAR.
Basic Law takes its legal basis from Article 31 of PRC
Constitution. That Article allows for systems different from those
in mainland China to be practised in HKSAR. Draft Basic Law
prescribes (Article 4) that SAR will maintain previous capitalist system and lifestyle for 50 years. More clearly, Article 10 of
Basic Law says that the SAR's social and economic systems, the
system for protection of basic rights and freedoms, and the executive, legislative and judicial systems are to be based on those
set out in Basic Law. These two provisions expressly provide for different systems to have effect in SAR from those in force in the PRC Constitution and thus displace latter in so far as application
to the SAR is concerned. Whether wording in that article can be
CONFIDENTIAL
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