TNAG-1602-FCO40-2198-Future-of-Hong-Kong-Basic-Law-1987 — Page 10

caixes

a appli colectoral! Laur

in SAR.

law

why?

~

7. PARA. 14. REGARGING THE APPLICATION IN THE HKSAR OF CHINESE STATUTES, WE TAKE THE VIEW THAT THE DIRECTIVE OPTION SHOULD BE CONFINED TO THOSE AREAS WHICH ARE CLEARLY IDENTIFIED TO BE THE RESPONSIBILITIES OF THE CPG 1.E. FOREIGN AND DEFENCE MATTERS. YOUR FORMULA, HOWEVER, OFFERS A MUCH WIDER SCOPE AND WE ARE WARY OF THE ? DANGER OF IT BEING MADE USE OF BY THE CHINESE TO OPEN UP A FLOODGATE.

IF THE FIELD TO BE COVERED BY THE DIRECTIVE FORMULA NEEDS TO BE WIDENED, IT IS FOR THE CHINESE TO CONVINCE US OF SUCH A NEED. WE SHOULD NOT VOLUNTARILY CHANGE OUR STAND AS STATED IN TRILOGY 111 AT

THIS STAGE: TO DO SO WOULD ONLY SEND CONFUSING SIGNALS.

8. PARA. 17. ON REFLECTION, WE WOULD LIKE THE ARTICLE REGARDING THE ELECTION OF HK DEPUTIES TO THE NPC TO BE CONFINED TO MAKING

PROVISION FOR CHINESE NATIONALS WHO ARE PERMANENT RESIDENTS OF THE

HKSAR ONLY. IN PREPARING AN ALERNATIVE FORMULA, WE HAVE ATTEMPTED TO

AVOID ANY EXPRESS STATEMENT THAT THE DETAILS OF THE ELECTIONS OF

HK'S DEPUTIES TO THE NPC SHOULD BE PRESCRIBED IN AN SAR LAW, SO

AS TO CATER FOR CHINESE SENSITIVITIES AND TO MINIMISE CHANGE TO THE

ARTICLE AS PRESENTLY DRAFTED BY THE BLDC SPECIAL GROUP. OUR FORMULA

READS:'' CHINESE NATIONALS WHO ARE PERMANENT RESIDENTS OF THE HONG

KONG SAR MAY, IN ACCORDANCE WITH THE LAW, TAKE PART IN THE

MANAGEMENT OF THE AFFAIRS OF THE STATE.IN ACCORDANCE WITH THE QUOTA

AND THE METHOD OF SELECTING DEPUTIES DETERMINED BY THE NPC STANDING COMMITTEE, CHINESE NATIONALS WHO ARE PERMANENT RESIDENTS OF THE

HKSAR SHALL ELECT THE NPC DEPUTIES OF THE HKSAR FROM AMONGST

SUCH CHINESE NATIONALS.''

IN THE CONTEXT OF THE BL, THE TERM IN ACCORDANCE WITH THE LAW'',

WHICH APPEARS IN THE FIRST CLAUSE OF THE ABOVE FORMULA, SHOULD BE

INTERPRETED AS 'IN ACCORDANCE WITH THE LAWS OF THE HKSAR''. THE

FIRST CLAUSE IS INTENDED TO BE AN OVERRIDING STATEMENT, OF

WHICH THE SECOND CLAUSE IS AN ELABORATION. HENCE, IT COULD BE

ARGUED THAT ALTHOUGH THE ELECTORAL DETAILS ARE TO BE DETERMINED BY

THE NPC STANDING COMMITTEE, THEY HAVE TO BE SET OUT IN AN SAR LAW.

SECOND TUR

9. PARA. 2. OUR PREFERENCE REMAINS THAT THE FOLLOWING WORDS

'' (OR THAT STATE'S NATIONALS OUTSIDE THE SAR)'' SHOULD BE REMOVED

FROM THE FORMULA SET OUT IN YOUR TELNO 399. WE TAKE THE VIEW THAT

THE JURISDICTION OF THE COURTS OF HK IS, AND SHALL BE(BY VIRTUE OF

THE PRESERVATION OF THE PREVIOUS JUDICIAL SYSTEM), GOVERNED BY THE

COMMON LAW. THUS, THERE IS NO NEED FOR A CODIFICATION OF THOSE

ASPECTS WHICH WILL NOT BE JUSTICIABLE IN THE SAR'S COURTS.THE

CHINESE, HOWEVER, INSIST ON SOMETHING TO BE SAID IN THE BL TO

SAFEGUARD THE SOVEREIGNTY AND THE LEGITIMATE INTERESTS OF THE STATE.

OUR OBJECTIVE, THEREFORE, IS TO WORK OUT A SIMPLE AND STRAIGHT

FORWARD PROVISION, WHICH WILL BE THE MINIMUM NECESSARY TO SATISFY

CHINESE DEMANDS. WE RECOGNISE THE DIFFICULTIES IN CODIFYING THE

COMMON LAW AND ACCEPT THAT IT IS IMPOSSIBLE TO INCLUDE IN THE BL

AN EXHAUSTIVE LIST OF ALL THOSE ASPECTS THAT WILL BE OUTSIDE THE

JURISDICTION OF THE SAR'S COURTS. THE DELETION OF THE WORDS REFFERED

SECRET

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