TNAG-1748-FCO40-2467-Visit-by-Sir-Geoffrey-Howe--Secretary-of-State-for-Foreign-a-1988 — Page 204

CONFIDENTIAL

Hong Kong will have "high degree of autonomy", not "independence". [For general use]

On maintenance of existing judicial/legal system, draft BL

clearly provides for continuation of present, common law system (Articles 8 and 17), and for an independent judiciary (Articles

84-94). Power of final judgement also vested in the Hong Kong

courts (Article 81).

Have noted criticisms, on eg NPC's power to determine validity of laws enacted by SAR legislature; application of laws enacted by NPC; restriction on jurisdiction of SAR courts; interpretation of

Basic Law.

If particular concerns are strongly felt in Hong Kong, confident Basic Law Drafting Committee will take them into account.

Need to remember this is first draft.

RELATIONSHIP BETWEEN BASIC LAW AND PRC CONSTITUTION?

Basic Law will provide clear definition of constitutional relationship between Hong Kong and Central authorities. Will clearly

define areas in which SAR has autonomy.

This is improvement on present position where there are grey areas, and where HMG retains theoretical ultimate right to direct Hong Kong Government across the board. The powers available to the Central People's Government after 1997 will be more closely defined

and limited to specific areas.

Note also that Basic Law is quite clear (Article 4) that socialist system and policies will not be practised in SAR.

Basic Law takes its legal basis from Article 31 of PRC Constitution. That Article allows for systems different from those in mainland China to be practised in HKSAR. Draft Basic Law prescribes (Article 4) that SAR will maintain previous capitalist system and lifestyle for 50 years. More clearly, Article 10 of Basic Law says that the SAR's social and economic systems, the system for protection of basic rights and freedoms, and the executive, legislative and judicial systems are to be based on those set out in Basic Law. These two provisions expressly provide for different systems to have effect in SAR from those in force in the PRC Constitution and thus displace latter in so far as application to the SAR is concerned. Whether wording in that article can be

CONFIDENTIAL