HKB 012/1
CONFIDENTIAL
Basic Law (February 1989 text): New Points
Note prepared 5
by
Mr
comparing Secal draft first bandage and noting changes
Ther
Mer fund, Miss Marsien Mr Cannon, Miss Elliot,
mr Wow.
@ Enteropa. Wiv
This paper notes a number of new points (and some continuing second
―
line points I do not rehearse most of the minuting) which emerge on the latest draft.
34
material in earlier
It would be helpful if
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to
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red
HL /Per/ шку)
a copy was faxed to Hong Kong together, if not already sent, with my minutes of 4 January, 23 January, 6 Febary and summary of 15 March
and an explanation that some of the points in the earlier minutes
have been overtaken, not always happily, by the February 1989 text. The paper deals with general and specific points; of the latter Arts
108 and 117 raise significant new issues.
1. General points
(a) The February 1989 text contains a number of changes in the
tense of the verb from the functional present 'the HKSAR is vested with legislative power' - to the regulatory imperative
'the HKSAR shall be vested with legislative power'. So long as
there is consistency, this does not seem to me to matter. Where
there may be a problem is if 'shall' has a significant element of futurity (even if in a Scots or American sense), and not wholly a regulatory sense, so that something that one would
expect to have effect when the Basic Law comes into force
appears to require some further act; this may be particularly
important where the action appears to be required of some organ
of the PRC other than the NPC. See for example Article 13, para
3, Article 124, the first two lines of para 2 of Article 157.
It has also been suggested (though I think wrongly) that 'shall
be adopted' in Article 159, para 2 will require some legislative
or quasi-legislative act. (On the other hand, see Article 12, para 3 of the April 1988 text where 'will' correct future
changed to 'shall' in the February 1989 text).
1
-
is
We raised with Shao Tianmen the question whether shall
authorise' in the second paragraph of Article 157 required some
further act of the Standing Committee and I seem to recollect
that he said 'no'. That may well be the answer to Articles 13
and 124 also, but we will need to reconfirm it.