TNAG-1863-FCO40-2643-Future-of-Hong-Kong-Basic-Law-1989 — Page 65

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HKB

012./1

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141435

MDHOAN 6868

CONFIDENTIAL

FM FCO

TO IMMEDIATE PEKING

TELNO 1045

OF 0214OOZ NOVEMBER 89

for

TOP COPY Q DIST ?

INFO IMMEDIATE HONG KONG, UKREP JLG HONG KONG

PART 1 OF 2

MIPT : BASIC LAW

DRAFT OF LETTER FROM FIFOOT TO SHAO TIANREN

1. I UNDERSTAND THAT SOME DOUBTS HAVE BEEN EXPRESSED ABOUT THE

DESIRABILITY OF HOLDING A FURTHER MEETING OF LEGAL EXPERTS AS

PROPOSED IN SEPTEMBER BY THE BRITISH EMBASSY IN BEJING TO THE MINISTRY OF FOREIGN AFFAIRS FOR OUR PART. WE HAVE ALWAYS FOUND THESE CONFIDENTIAL MEETINGS OF LEGAL EXPERTS TO BE VERY HELFUL FOR OUR UNDERSTANDING OF THE DRAFTING OF THE BASIC LAW. I ALSO

BELIEVE THAT, ACCEPTING AS WE DO THAT THE DRAFTING OF THE BASIC LAW IS THE RESPONSIBILITY OF THE PRC, NEVERTHELESS OUR VIEWS ON VARIOUS MATTERS WHICH HAVE ARISEN AS THE DRAFTING HAS PROGRESSED

HAVE BEEN OF SOME USE TO YOU.

2. I HAVE BEEN HOPEFUL THAT WE MIGHT HAVE A FURTHER MEETING AT THIS STAGE IN ORDER THAT WE COULD DISCUSS TOGETHER TWO PARTICULAR

ISSUES OF SOME IMPORTANCE - NAMELY DRAFT ARTICLES WHICH APPEAR TO RAISE QUESTIONS OF CONSISTENCY WITH THE JOINT DECLARATION, AND THE POSSIBILITY OF RESOLVING SOME PROBLEMS WHICH MAY ARISE WHEN ONE LAW, THE BASIC LAW, HAS EFFECT BOTH IN THE CHINESE LEGAL SYSTEM AND IN THE HONG KONG COMMON LAW SYSTEM. IN ADDITION WE

COULD CARRY FURTHER OUR DISCUSSIONS OF VARIOUS ISSUES OF

SUBSTANCE.

CONSISTENCY ISSUES

3. YOU MAY RECALL THAT BEFORE DINNER ONE EVENING DURING MY VISIT TO BEJING LAST DECEMBER, I RAISED WITH YOU THE QUESTION OF THE CONSISTENCY OF WHAT IN THE APRIL 1988 TEXT WERE ARTICLES 105 AND

107 WITH THE FIRST SENTENCE OF SECTION V AND THE THIRD SENTENCE OF SECTION VII OF ANNEX I TO THE JD. I EMPHASISED OUR HOPE THAT

THE BL WOULD AVOID WORDING WHICH COULD BE CRITICISED AS

INCONSISTENT WITH THE JD AND OUR WILLINGNESS TO SUGGEST AN

ALTERNATIVE FORM OF WORDS WHICH WOULD NOT HAVE THAT EFFECT. CHANGES HAVE BEEN MADE TO THESE ARTICLES, WHICH NOW APPEAR AS ARTICLES 106 AND 107 OF THE 1989 TEXT, BUT THE QUESTION OF CONSISTENCY STILL REMAINS. IT IS DIFFICULT TO AVOID THE

CONCLUSION THAT THE CURRENT TEXT STILL OPERATES AS A FETTER ON THE HIGH DEGREE OF AUTONOMY WHICH, UNDER THE JOINT DECLARATION,

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