TNAG-1744-FCO40-2463-Visits-by-FCO-officials-to-Hong-Kong--including-visit-by-Lor-1988 — Page 50

CONFIDENTIAL

155750 MDHIAN 4204

- ARTICLE 18 : THE RESTRICTIONS ON THE JURISDICTION OF SAR

COURTS RUN COUNTER TO THE PRESENT PRACTICE AND THE PERCEPTION, DERIVED FROM JD 58-60, THAT JUDICIAL POWER IN THE SAR (INCLUDING THE POWER OF FINAL JUDGMENT) SHALL BE VESTED IN THE SAR COURTS,

WHICH SHALL EXERCISE THAT POWER INDEPENDENTLY AND FREE FROM

INTERFERENCE.

-

ΤΟ

ARTICLE 169 : THE REQUIREMENT FOR THE SAR COURTS TO REFER

THE NPC STANDING COMMITTEE WHENEVER A CASE INVOLVES THE INTER-

PRETATION OF A BASIC LAW ARTICLE UNDERMINES THE JD PROVISION FOR

THE POWER OF FINAL JUDGMENT IN THE SAR TO BE VESTED IN THE SAR

COURTS.

3. ON (B), THERE HAVE BEEN MANY CRITICISMS ON THE DRAFTING DEFECTS IN CHAPTER III. THE MAJOR DEFECT IS IN RESPECT OF ARTICLE 39, WHICH COULD ALLOW THE SAR LEGISLATURE TO ENACT LAWS TO RESTRICT BASIC

HUMAN RIGHTS BEYOND THE LIMITS PERMITTED BY THE TWO INTERNATIONAL COVENANTS ON HUMAN RIGHTS. THIS IS IN CONFLICT WITH JD156, WHICH PROVIDES THAT THESE TWO COVENANTS AS APPLIED NOW IN HK (I.E. WITH

SOME LIMITED RESERVATIONS) SHALL CONTINUE TO APPLY IN THE SAR.

4.

ON (C), THERE IS ANXIETY AMONG HK PEOPLE HOLDING OR THINKING OF APPLYING FOR FOREIGN PASSPORTS ABOUT THE POSITION OF FOREIGN NATIONALS AFTER 1997 IN RESPECT OF THEIR RIGHT OF ABODE IN HK (ARTICLE 23), THEIR ELIGIBILITY FOR CERTAIN POLITICAL AND CIVIL SERVICE APPOINTMENTS (ARTICLE 25, 44, 55, 61 ETC.) AND CONSULAR PROTECTION. (AS WILL BE APPARENT SOME OF THESE DOUBTS AND FEARS ARE MUTUALLY CONTRADICTORY).

5. ON (D), A NUMBER OF ARTICLES, E.G. 105 (BALANCED BUDGET), 107 LOW TAX POLICY) 110 (FREE AND OPEN MONETARY POLICY) AND 122-124 (OPEN TRADE AND ECONOMIC POLICIES), RAISE THREE PROBLEMS : FIRST, THESE ARE POLICY PRESCRIPTIONS UNSUITABLE FOR INCLUSION IN LAW: SECONDLY, THEY COULD RESULT IN THE SARG'S ACTIONS BEING SUBJECTED TO JUDICIAL REVIEW AND THUS SERIOUSLY DETRACT FROM THE SARG'S ABILITY TO GOVERN: AND, THIRDLY, THEY CONTRAVENE THE JD PROVISIONS WHICH GIVE THE SAR FULL AUTONOMY TO DECIDE ITS ECONOMIC, TRADE, MONETARY AND FINANCIAL POLICIES.

6.

ON (E), WORRIES HAVE BEEN EXPRESSED THAT THE ARRANGEMENTS SET OUT IN ANNEX III WOULD CAUSE RADICAL CHANGES TO THE SAR ADMINIST-

RATION AND LEGISLATURE IN 1997, THUS AFFECTING A SMOOTH TRANSITION.

2

PAGE

CONFIDENTIAL