TT ATHENS HONG KONS
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CONFIDENTIAL
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HKCK 040/12.
TELELETTER
FROM A C GALSWORTHY, HONG KONG DEPARTMENT
DATE 15 JANUARY 85
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FOLLOWING FOR R P MARGOLIS, DEPUTY POLITICAL ADVISER, HONG KONG
HONG KONG AGREEMENT: ARTICLE BY CHINESE LEGAL EXPERT
1. THE CORRESPONDENCE ON THE ARTICLE BY ZHANG YOUYU RESTS
WITH YOUR TELELETTER TO HUM OF 20 DECEMBER. - HICK 040/1 (84) (988)
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2. WE HAVE DECIDED THAT IT WOULD INDEED BE BEST TO LET THIS
MATTER REST. THE LINE TAKEN BY ZHANG ON THE LAWS CURRENTLY IN
FORCE' IS HOWEVER A DANGEROUS ONE AND WE SHOULD BE READY TO REBUT
IT IF IT REAPPEARS. BASED ON THE DEPARTMENT'S LEGAL ADVISER'S
VIEW THE LINE WE SHOULD TAKE IF THIS WAS TO HAPPEN IS AS
FOLLOWS:
(A) THE SENTENCE IN PARAGRAPH 3(3) OF THE JOINT DECLARATION
WHICH REFERS TO THE LAWS CURRENTLY IN FORCE' MAY BE AMBIGUOUS.
HOWEVER ANY 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 THI PROVISION RELATES, IE 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 WRRE IN FORCE IMMEDIATELY
BEFORE THE BEGINNING OF THAT PERIOD, IE 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POINT IN PRESERVING THE EXISTENCE OF LAWS WHICH PRIOR TO 30 JUNE 1997, HAD BEEN REPEALED, EG IN THE PERIOD BETWEEN 1984 AND 1997. (B) NO MODERN SOCIETY COULD HALT ITS ENTIRE LEGISLATIVE MACHINE
FOR 13 YEARS. NOR COULD ANY COMMON LAW SYSTEM, SUCH AS IS PRESERVED BY ANNEX I(II), HALT THE JUDICIAL DEVELOPMENT OF THE
COMMON LAW FOR A SIMILAR PERIOD. EQUALLY IT WOULD BE QUITE
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