Mr Marshall
HKD
370/7
33
pa
12
FROM:
RY
Jill Barrett
Assistant Legal Adviser
K174 270 3381
Juken
DATE:
7 September 1993
HONG KONG: ADAPTATION OF LAWS
1. I refer to your minute of 26 August, passed to me on return from Geneva on 2 September, requesting comments on HKG's four papers containing proposals for adapting Hong Kong Ordinances.
2. Thank you for sending me the draft speaking note attached to HKG's fax of 20 August containing "further" explanation of our approach to adaptation. It would appear that this is further to the mention of the new approach made at JLG XXVI (the letter of 20 August says HK Tel No 159 of 23.6.93 refers). I should be grateful if you would in due course supply me with a copy of that telegram and any relevant minutes relating to the new approach. However, I have looked at the four papers in the light of the "further" explanation, which seems to be sufficient for this purpose.
3. Paper No 2
Marriage ordinance (Cap 181)
You will see from para (c) that most of the references to "Governor" are to be replaced with references to "Chief Executive", as you would expect. However para (d) proposes that the reference to "Governor" in section 42 be replaced by "Chief Executive in Council". This would appear to be a slight change of substance. I believe this can be explained by the fact that section 42 confers on the Governor power to make subordinate legislation. According to BL56, the Chief Executive shall consult the Executive Council before making subordinate legislation. This drafting change can therefore be explained as an adaptation to the Basic Law. (There are a number of places in the other papers where a similar change has been made, obviously for similar reasons.)
4. The term "Chief Executive in Council" does not, so far as I can see, appear in the Basic Law. A new term equivalent to "Governor in Council" will obviously be needed in legislation such as this. It occurs to me to wonder in passing whether HKG propose to define this term when they adapt the Interpretation and General Clauses Ordinance (Cap 1), which I understand will be the last stage of the adaptation exercise.
5. Marriage Reform Ordinance (Cap 178) There appears to be a mistake in para (a) of the paper. It is proposed to replace "Governor" with "Chief Executive" in section 2. Section 2 provides that ""appointed day" means the day appointed for the purpose of this Ordinance by the