CONFIDENTIAL
141454
MDHOAN 6871
CONFIDENTIAL
FM FCO
TO IMMEDIATE PEKING
TELNO 1045
OF 0216OOZ OCTOBER 89
fur
INFO IMMEDIATE HONG KONG, UKREP JLG HONG KONG
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PART 2 OF 2
BASIC LAW:
DRAFT LETTER FROM FIFOOT TO SHAO TAINREN
TWO LEGAL SYSTEMS IN ONE LAW
5. DURING A NUMBER OF OUR DISCUSSIONS, WE HAVE RECOGNISED DIFFERENCES THAT EXIST BETWEEN THE LEGAL SYSTEM IN HONG KONG AND THAT IN THE MAINLAND. THIS CAN CREATE DIFFICULTIES WHERE ONE LEGAL DOCUMENT, THE BASIC LAW, HAS TO HAVE EFFECT AS PART OF THE LAW OF EACH OF THE TWO DIFFERENT SYSTEMS AND I HAVE, FROM TIME TO TIME, WONDERED WHETHER THIS IS SUFFICIENTLY APPRECIATED AMONGST A WIDER AUDIENCE, AND WHETHER MORE SHOULD BE DONE IN THE BASIC LAW TO TAKE ACCOUNT OF CERTAIN DISTINCTIVE CHARACTERISTICS OF THE TWO LEGAL SYSTEMS. THE ESSENTIAL PROBLEM IT SEEMS TO ME IS THIS : IN CHINESE CONSTITUTIONAL LAW, AS I UNDERSTAND IT, THE MAIN BASIC LEGISLATION LAYS DOWN PRINCIPLES, BUT THOSE PRINCIPLES MAY NEED TO BE GIVEN EFFECT OR IMPLEMENTED IN A MORE DETAILED LAW. SUCH IMPLEMENTING LAWS MAY BE ENACTED BY A LEGISLATURE OTHER THAN A SOVEREIGN LEGISLATURE BY VIRTUE OF AN INHERENT POWER TO PASS IMPLEMENTING LEGISLATION, ADAPTING THE MAIN LEGISLATION TO LOCAL CONDITIONS, IN A MANNER CONSISTENT WITH THE PRINCIPLES IN THE MAIN LEGISLATIOΝ. I UNDERSTOOD, FOR EXAMPLE, FROM OUR DISCUSSIONS LAST DECEMBER, THAT THE PASSAGE IN WHAT IS NOW THE SECOND PARAGRAPH OF ARTICLE 18, (THAT THE LAWS IN ANNEX III SHOULD BE APPLIED LOCALLY BY WAY OF PROMULGATION OR LEGISLATION) WILL ENTITLE THE SAR LEGISLATURE TO ADAPT SUCH LAWS, AS NECESSARY, AS REGARD MATTERS OF PROCEDURE AND DETAIL. IN THE COMMON LAW SYSTEM, HOWEVER, IF A LEGISLATURE OTHER THAN THE SOVEREIGN LEGISLATURE IS TO HAVE POWER TO IMPLEMENT OR ADAPT MAIN LEGISLATION TO LOCAL CONDITIONS, IT HAS TO BE EXPRESSLY AUTHORISED TO DO SO : IT HAS NO SUCH POWER INHERENTLY.
IF I AM CORRECT IN MY ANALYSIS OF THE DIFFERENCES, I WOULD SUGGEST THAT MUCH MISUNDERSTANDING AND SOME REAL DIFFICULTIES COULD BE AVOIDED IF THESE DIFFERENCES WERE RECOGNISED IN THE DRAFTING OF THE BASIC LAW AND IF PROVISION WERE MADE TO TAKE ACCOUNT OF THEIR CONSEQUENCES. FOR EXAMPLE, IT MIGHT AVOID SOME
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