TNAG-1442-FCO40-1926-Constitutional-development-in-Hong-Kong-1986 — Page 94

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SKLAJK

BASIC LAW: LEGAL ISSUES

SECRET

1. The debate over the drafting of the Basic Law has brought to

light a number of legal issues which are of considerable significance for the people of Hong Kong. We believe there would be advantage in discussing these informally and in confidence between British and Chinese legal experts.

A.

RELATIONSHIP BETWEEN THE BASIC LAW AND THE CHINESE CONSTITUTION

2. Annex I, Section I of the JD provides inter alia that the Basic Law will be enacted under Article 31 of the Chinese constitution and

shall stipulate that the socialist system and socialist policies shall not be practised in the HK SAR, and that Hong Kong's previous capitalist system and lifestyle shall remain unchanged for 50 years.

Annex I, Section II of the JD also provides that the laws of the HK SAR shall be the Basic Law, and the laws previously in force in Hong

Kong and laws enacted by the HK SAR legislature.

3. There are, however, fears in some quarters in Hong Kong that the possibility of a conflict between some provisions of the Chinese constitution and the provisions of the Joint Declaration may erode the guarantee provided by the latter. In order to meet these fears there have been suggestions that some explicit provision should be

made in the Basic Law to clarify the position.

4.

We recognise this is

is a highly complex area, touching on the

implementation of the agreement between the United Kingdom and

China. However it would seem to us that if it is examined in the

way it is likely to manifest itself in practice ways can be found

which will help to resolve these fears. Legal experts of the British side stand ready to discuss the various issues with Chinese legal experts informally and in confidence.

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SECRET