TNAG-1440-FCO40-1924-Constitutional-development-in-Hong-Kong-1986 — Page 246

THAT NEW PROVISIONS WHICH ARE NOT CONTAINED IN THE JOINT DECLARATION WILL HAVE TO BE MADE. GIVEN THE LACK OF DETAIL IN THIS AREA IN THE JOINT DECLARATION, SOME ADDITIONS ARE OBVIOUSLY NECESSARY. THEY SHOULD NOT, HOWEVER, LIMIT THE DEGREE OF AUTONOMY STIPULATED IN THE JOINT DECLARATION NOR SHOULD THEY INTRODUCE

RESTRICTIVE INTERPRETATIONS OF SPECIFIC PROVISIONS IN IT.

5. IDEALLY, THE JOINT DECLARATION AND ITS ANNEXES SHOULD, AS FAR AS POSSIBLE, BE GIVEN THE FORCE OF LAW IN THE HONG KONG SAP. THERE ARE PRECEDENTS IN VARIOUS NATIONAL CONSTITUTIONS FOR A TREATY TO BE

GIVEN THE FORCE OF NATIONAL LAW AND PREVAILING OVER OTHER LAWS.

MR. SHI JIUYONG, A CHINESE LEGAL EXPERT, HAS ALSO STATED THAT IT IS COMMON FOR CHINESE ENACTMENTS TO GIVE INDIVIDUAL AGREEMENTS THE

FORCE OF LAW IN THE PRC AND TO MAKE THEM PREVAIL OVER DOMESTIC LAWS.

6.

THE IDEA OF GIVING THE JOINT DECLARATION THE FORCE OF LAW IN THE

BASIC LAW WAS PUT TO MR. LU PING WHILE HE WAS FN HONG KONG. HE

REPLIED THAT PEOPLE WOULD WANT SOMETHING MORE DETAILED. THE IDEA

IS NOT, HOWEVER, TO EXCLUDE ALL OTHER DETAILS BUT TO REDUCE THEIR

NUMBER AND, MORE IMPORTANT, TO PRESERVE THE JOINT DECLARATION.

7. IF THE APPROACH OF GIVING THE JOINT DECLARATION AND ITS ANNEXES

THE FORCE OF LAW IN THE HONG KONG SAR PROVES UNACCEPTABLE, HT

SHOULD NEVERTHELESS BE POSSIBLE TO ENSURE THAT:

(A) THE BASIC LAW CONTAINS AN EXACT REPETITION OF ANNEX TO THE

JOINT DECLARATION OR AT LEAST FULL AND ACCURATE EXTRACTS FROM IT,

(NEXT WORD UNDERLINED) WITHOUT RESTRICTIVE INTERPRETATIONS: AND

(B) IN THOSE AREAS WHERE THE BASIC LAW WILL CONTAIN PROVISIONS

ADDITIONAL TO THOSE IN THE JOINT DECLARATION (E.G. THE FUTURE

GOVERNMENTAL STRUCTURE), SUCH ADDITIONS TAKE FULL ACCOUNT OF HONG

KONG'S CIRCUMSTANCES AND NEEDS.

8. THERE ARE TWO SHGNIFICANT CONSIDERATHONS TO BE BORNE IN MIND.

(NEXT WORD UNDERLINED) FIRST, IT IS IMPORTANT TO ENSURE THAT HONG

KONG PEOPLE HAVE FULL CONFIDENCE THAT THE PROVISIONS OF THE

JOINT DECLARATION WILL BE FAITHFULLY AND FULLY REFLECTED IN THE

BASIC LAW. AND (NEXT WORD UNDERLINED) SECONDLY, THERE ARE STILL 11

YEARS BEFORE 1997, DURING WHICH THERE WILL BE DEVELOPMENTS IN MANY FIELDS OF ACTIVITY HERE. MOREOVER AFTER THE SAR HS ESTABLISHED

*N 1997, HONG KONG WILL STILL NEED ROOM FOR DEVELOPMENT TO MEET

CHANGING NEEDS. IT IS IMPORTANT, THEREFORE, THAT THE ROOM FOR

DEVELOPMENT ALLOWED IN THE JOINT DECLARATION SHOULD BE REFLECTED IN

THE BASIC LAW. TO SET TOO MUCH DETAIL IN CONCRETE SO FAR IN ADVANCE

COULD PROVE A HINDRANCE IN THE FUTURE WHEN DESIRABLE CHANGES NEED

TO BE MADE.

B. INDIVIDUAL RIGHTS AND FREEDOMS.

9. ONE AREA WHICH IS OF FUNDAMENTAL IMPORTANCE TO THE MAINTENANCE OF CONFIDENCE IN HONG KONG IS THE PRESERVATION OF INDIVIDUAL RIGHTS

AND FREEDOMS AS SET OUT IN THE JOINT DECLARATION.

SECRET

/10.