TNAG-1863-FCO40-2643-Future-of-Hong-Kong-Basic-Law-1989 — Page 53

CONFIDENTIAL

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CONFIDENTIAL

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MDHIAN 3295

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TO IMMEDIATE FCO

TELNO 3694

OF 070844Z NOVEMBER 89

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INFO IMMEDIATE PEKING, UKREP JLG HONG KONG

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YOUR TELNOS 1045, 1054 AND 1055 TO PEKING: BASIC LAW: FIFOOT/SHAO LETTER: DRAFT SPEAKING NOTE

WE ARE GENERALLY CONTENT WITH THE DRAFT LETTER IN FIRST TUR AS REVISED IN SECOND TUR BUT HAVE THE FOLLOWING COMMENTS.

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2. PARAGRAPH 1,7TH LINE. WE PREFER THE WORDING IN PARAGRAPH 1 OF PEKING TELNO 1942 AND THEREFORE SUGGEST REPLACING ''THE DRAFTING OF THE BASIC LAW IS THE RESPONSIBILITY WITH ''THE PREPARATION AND PROMULGATION OF THE BASIC LAW ARE THE RESPONSIBILITIES'' WE THINK THAT THIS FORMULATION BETTER

PRESERVES OUR POSITION THAT WE ARE ENTITLED TO SATISFY OURSELVES THAT THE BASIC LAW IS DRAFTED IN CONFORMITY WITH THE REQUIREMENTS

OF THE JD. A SIMILAR POINT ARISES IN PARAGRAPH 2 OF THE DRAFT SPEAKING NOTE IN, THIRD TUR, WHERE WE SUGGEST THAT THE OPENING WORDS SHOULD BE, ''WE HAVE ALWAYS ACCEPTED THAT THE PREPARATION AND PROMULGATION OF THE BASIC LAW

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PARAGRAPHS 5 TO 7. AS DRAFTED, THESE MAY GIVE THE IMPRESSION THAT THE ESSENTIAL PROBLEM OF ''TWO LEGAL SYSTEMS IN ONE LAW'

IS EXHAUSTIVELY EXPLAINED IN THOSE PARAGRAPHS. HOWEVER, ONE OTHER MAJOR PROBLEM ARISING FROM THE ''TWO LEGAL SYSTEMS IN ONE LAW'' IS THE PROBLEM OF LEGISLATIVE INTERPRETATION AND THE WAY IT AFFECTS ARTICLE 157. WE THEREFORE PROPOSE THAT A NEW

PARAGRAPH SHOULD BE ADDED AFTER PARAGRAPH 5: 'ANOTHER PROBLEM

WHICH ARISES BECAUSE THE BASIC LAW HAS TO HAVE EFFECT AS PART

OF THE LAW OF THE TWO LEGAL SYSTEMS LIES IN THE DIFFERENCE BETWEEN THE VIEW TAKEN BY THE CHINESE LEGAL SYSTEM, AND THAT TAKEN BY THE COMMON LAW SYSTEM, OF THE NATURE OF INTERPRETATION

OF LEGISLATION. IN THE COMMON LAW SYSTEM THE POWER OF INTERPRETATION IS EXERCISED ONLY BY THE COURTS, IN ACCORDANCE WITH JUDICIAL PROCEDURES AND FOLLOWING A JUDICIAL HEARING: A NON-JUDICIAL

BODY (SUCH AS THE STANDING COMMITTEE OF THE NPC) COULD UNDER

THE COMMON LAW SYSTEM ONLY AFFECT THE INTERPRETATION OF THE BASIC

LAW IF IT EXERCISED A POWER TO AMEND IT. THIS HIGHLIGHTS THE

DIFFERENCE BETWEEN AN INTERPRETATION OF THE BASIC LAW BY THE

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CONFIDENTIAL