CONFIDENTIAL
GRS 700
CONFIDENTIAL
FM HONG KONG 19103OZ APR 85
TO ROUTINE F C O
TELEGRAM NUMBER 756 OF 19 APRIL
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APR 1985
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YOUR TELNO 484: HONG KONG AGREEMENT: INTERPRETATION OF BASIC LAW.
1. PROFESSOR FINER'S REMARKS HAVE AROUSED ONLY LIMITED INTEREST,
AND WE SHOULD PREFER NOT (NOT) TO DEPLOY THE POINT SUGGESTED IN
YOUR TUR. IT WOULD, IN OUR VIEW, BE UNWISE TO SUGGEST THAT A
SELECTIVE COMBINATION OF THE TERMS OF THE AGREEMENT MIGHT HAVE
THE EFFECT OF CONFERRING THE RIGHT OF INTERPRETATION OF THE BASIC
LAW OF HONG KONG. THIS WOULD INEVITABLY GIVE THE IMPRESSION
OF CONTRADICITNG PENG ZHEN AND DOES NOT REPRESENT AN ADEQUATE
RESPONSE TO PROFESSOR FINER'S POINT THAT IT IS THE ULTIMATE POWER
TO INTERPRET THE BASIC LAW WHICH IS IMPORTANT.
2. PROFESSOR FINER APPEARED ON A TV DISCUSSION PROGRAMME,
''NEWSPLUS''., WITH MR. MARTIN LEE QC, MR. ALBERT CHEN (A LECTURER AT THE HONG KONG UNIVERSITY DEPARTMENT OF LAW), MS. LINDA
JAIVEN (CORRESPONDENT FOR AISA WEEK) WITH ANTHONY LAWRENCE IN THE CHAIR. THE MAIN POINTS OF INTEREST MADE DURING THE DISCUSSION WERE
AS FOLLOWS:
(A) PROFESSOR FINER SAID THAT, UNLESS SPECIFIC PROVISION FOR INTERPRETATION IN HONG KONG WERE MADE, THE BASIC LAW WOULD BE
INTERPRETED BY THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S
CONGRESS WHICH WAS AN ORGAN OF THE CHINESE GOVERNMENT. THIS COULD
HAVE THE EFFECT OF DESTROYING HONG KONG'S PROMISED AUTONOMY.
HE QUOTED THE EXAMPLE OF INDIVIDUAL RIGHTS AND FREEDOMS WHICH WERE
IN THEORY PROVIDED FOR BY THE CHINESE CONSTITUTION, BUT WHICH WERE
INTERPRETED AND APPLIED BY THE CHINESE GOVERNMENT IN A TOTALLY
DIFFERENT MANNER FROM THEIR INTERPRETATION AND APPLICATION IN HONG
KONG.
(3) MR. ALBERT CHEN AND MR. MARTIN LEE BOTH THOUGHT THAT THE TERMS
OF THE AGREEMENT WOULD NOT PRECUL DE INTERPRETATION BY THE HONG KONG COURTS, AND THAT THIS WAS LIKELY TO HAPPEN AUTOMATICALLY. THE SEPARATENESS OF ARTICLE 31 OF THE CHINESE CONSTITUTION, TO WHICH THE HONG KONG SAR WOULD BE LINKED, WOULD IN EFFECT DISAPPLY THE REST OF THE CHINESE CONSTITUTION. PROFESSOR FINER SAID THAT THIS
WAS IN THEORY A TENABLE ARGUMENT, ALTHOUGH HE DISAGREED WITH IT.
IT WAS ESSENTIAL FOR THIS AMBIGUITY TO BE CLEARED UP. HE ALSO
SUGGESTED THAT SOME PROPERLY QUALIFIED PERSON OR BODY OUTSIDE THE
PRC SHOULD CHECK THE DRAFT OF THE BASIC LAW TO ENSURE THAT IT DID INDEED FAITHFULLY REFLECT THE MEANING OF THE AGREEMENT
AND ITS ANNEXES.
CONFIDENTIAL
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