TNAG-1602-FCO40-2198-Future-of-Hong-Kong-Basic-Law-1987 — Page 11

take out

but differ! get such arg.

to

}

T) ABOVE WILL NOT IN ANYWAY DETRACT FROM THE SAR'S COURTS JUDICIAL POWERS WHICH THEY CURRENTLY ENJOY, SINCE THE RESTRICTIONS ON THE SAR'S COURTS AS PROPOSED ARE ACTUALLY LESS THAN THOSE CURRENTLY PROVIDED FOR UNDER THE COMMOR LAW. WE AYC THEREFORE MORE ATTRACTED

TO A FORM OF WORDS WHICH IS LESS COMPLICATED AND EASIER TO EXPLAIN

TO THE CHINESE. INCIDENTALLY, 14 DISCUSSION WITH MARTIN LEE, HE SUGGESTED ADDITION OF THE WORDS OR AFFECTING''

11

IN FRONT OF ITS

RELATIONSHIP WITH ANOTHER STATE'' WE SEE NO OBJECTION. WE HAVE, HOWEVER, WARNED HIM THAT THIS FORMUA MAY STILL BE IMPERFECT AND WOULD NEED TO BE FURTHER REFINED IN DUE COURSE. LEE, TOO, WAS NOT ENTIRELY HAPPY WITH THIS FORMULATION WHICH HE THOUGHT WOULD REMOVE

TOO MUCH DISCRETION FROM THE SAR'S COURTS.

·

10. PARA. 6. WE THINK THAT THE PRINCIPLE ENUNCIATED IN YOUR FORMULA IS AXIOMATIC AND IS VERY MUCH PART OF THE COMMON LAW. GIVEN

THAT THE PREVIOUS JUDICIAL SYSTEM WILL BE PRESERVED AFTER 1997, WE DO NOT SEE A NEED FOR THIS PRINCIPLE TO BE HIGHLIGHT IN THE BL. INDEED, THE WORD ''ALSO''IN YOUR FORMULA COULD GIVE RISE TO ARGUMENT THAT THE NPC STANDING COMMITTEE WILL PERFORM A SIMILAR FUNCTION. THIS WILL BE AN EROSION OF THE INDEPENDENT JUDICIAL

POWER OF THE HKSAR. READ WITH THE FIRST CLAUSE OF ARTICLE 2 OF CHAPTER IX, THE SECOND CLAUSE OF THE SAME ARTICLE, WE THINK, IS INTENDED TO FOCUS ON THE EXTENT TO WHICH THE SAR'S COURTS MAY INTERPRET THE PROVISIONS OF THE BL. THEREFORE, WE PREFER OUR FORMULA SET OUT IN PARA. 5 OF OUR TELN 1358.

11. PARA. 7. PARA. 3(12) OF THE JD MAKES IT CLEAR THAT PARA. 3

AND ANNEX I OF THE JD SHOULD BE UNCHANGED FOR 50 YEARS. BUT THIS DOES NOT BY ITSELF MEAN THAT ANYPART OF THE BL IS UNAMENDABLE, PROVIDED ALWAYS THAT ANY AMENDMENT OF THE BL SHALL NOT BE INCONSISTENT WITH THE PROVISIONS OF THE JD. FURTHERMORE, A

PROVISION IN THE BL TO THE EFFECT THAT CERTAIN PARTS OF THE BL ARE

UNAMENDABLE MAY ITSELF BE SUBJECT TO AMENDMENT. OUR VIEW IS THAT

THE BEST PROTECTION WOULD BE TO SECURE A PROVISION TO THE EFFECT

THAT NO AMENDMENT TO THE 3L MAY CONTRAVENE THE JD. SO LONG AS THAT IS SECURED, WE DO NOT HAVE ANY STRUNG OBJECTION TO THE ABSENCE OF A

LIST OF UNAMENDABLE ARTICLES OF THE BL. WE ALSO ENVISAGE THAT THE

PROCEDURES FOR PROPOSING AND DEALING WITH AMENDMENTS TO THE BL AS SUGGESTED BY THE BLDC SPECIAL GROUP WILL, IN ANY EVENT, MAKE ANY ATTEMPT TO AMEND THE BL A CONSIDERABLY DIFFICULT TASK. IN DISCUSSION WITH MARTIN LEE, WHO FIRST PROPOSED THE ''LISTING" OPTION HE SHARED OUR VIEWS AS SET OUT ABOVE. HE SAID, HOWEVER, THAT FOR A LIST AS A TACTICAL MOVE.

12. AS REGARDS THE IDIA OF RESTRICTING THE ABILITY OF THE NPC STANDING COMMITTE OR THE STATE COUNCIL TO PROPOSE AMENDMENTS, WE SHARE YOUR VIEW THAT THIS WILL NOT BE PALATABLE TO THE CHINESE. WHAT IS MORE PORTANT, HOWEVER, IS THAT THE AKSAR SHOULD BE FULLY CONSULTED ON ANY AVENDMENT PROPOSALS. 1 THIS REGARD, WE SUGGEST REVIVING THE PROPOSAL OF THE ESTABLISHMENT OF A SL COMMITTEE COMPRISING HK AND MATILAND MEMBERS TO ADVISE ON MATTERS RELATING TO

SECRET-3-

Чтие