TNAG-1414-FCO40-1894-Future-of-Hong-Kong-fundamental-rights-and-freedoms-1985 — Page 14

CONNICLIN..

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Disadvantages

Subject to the constraints of the Joint Declaration, Peking is ultimately in control of what goes into, and what stays in, the Basic Law. Our input will be limited.

We may also expect the Chinese to resist the insertion into one of their own laws of a catalogue of far-reaching human rights provisions which are not enjoyed by the bulk of the population of the PRC, either under the terms of the Chinese constitution or in practice.

11. Incorporation in a Hong Kong Ordinance

Merits

Carly 2011

Hong Kong would control the drafting of the ordinance, no doubt after consulting truly representative outside persons and bodies in Hong Kong. Provided the ordinance was consistent with the Joint Declaration, and in particular Annex I(VI) and (XIII), it would survive after 1997 by virtue of Annex I(II) (first sentence) to the Joint Declaration.

Disadvantages

This is not much of an entrenchment because the SAR legislature could at any time amend the law in accordance with its normal legislative procedures.

12. Retention in the Common Law

Merits

The PRC cannot control or influence the content or interpretation of the common law, yet the latter will be preserved by Annex I(II) to the Joint Declaration.

The interpretation of the common law will be in the hands of independent judges. As provided in Annex I(III) the judges may be recruited from other common law jurisdictions, and the final court of appeal in the SAR may invite judges from other common law jurisdictions to sit on the court. Moreover the common law is sufficiently flexibile to develop as a result of case law both inside and, more importantly, outside the SAR.

Disadvantages

The SAR legislature could replace or modify

any part of the common law at any time.

Presentationally this course would probably be less re-assuring to the public at large than a seemingly clear and comprehensive written codification.

CONFIDENTIAL