CONFIDENTIAL
141454
MDHO 6871
APPREHENSION AS REGARDS ARTICLE 2 IF IT WERE MADE CLEAR IN THAT ARTICLE, BY THE USE OF THE TERM QUOTE HEREBY UNQUOTE, THAT THE BASIC LAW ITSELF WILL BE AN INSTRUMENT OF AUTHORISATION AND THAT NO FURTHER AUTHORISATION WILL BE REQUIRED UNDER THAT ARTICLE. FURTHER, ARTICLE 157 MIGHT BE AMENDED BY ADDING A PROVISION SIMILAR TO THAT AT THE END OF ARTICLE 158 :
OF
SUCH
QUOTE NO INTERPRETATION OF THIS LAW SHALL CONTRAVENE THE ESTABLISHED BASIC POLICIES AND PRINCIPLES (CINCIDENTALLY QUOTE PRINCIPLES UNQUOTE IS STILL MISSING FROM THE ENGLISH TEXT)) THE PEOPLE'S REPUBLIC OF CHINA REGARDING HONG KONG UNQUOTE. A PASSAGE MAY NOT BE NECESSARY AS REGARDS CHINA, BUT IT IS HIGHLY DESIRABLE AS REGARDS HONG KONG IN ORDER TO REFLECT HOW CHINESE
LAW WORKS.
7. ON THE OTHER HAND IT WOULD ALSO BE DESIRABLE TO DEMONSTRATE TO HONG KONG THAT THE POWER TO LEGISLATE GRANTED BY THE BASIC LAW INCLUDES THE POWER TO IMPLEMENT, CONSISTENT WITH ITS PRINCIPLES, THE BASIC LAW. I WOULD THEREFORE LIKE TO SUGGEST FOR YOUR CONSIDERATION THE ADDITION TO THE FIRST PARAGRAPH OF ARTICLE 17, THE WORDS QUOTE INCLUDING THE POWER TO IMPLEMENT, AND TAKE NECESSARY MEASURES TO GIVE EFFECT TO, THIS LAW ACCORDING TO THE PRINCIPLES SET OUT IN THIS LAW UNQUOTE. SUCH AN EXPRESS PROVISION WOULD ASSIST THE HONG KONG COURTS IN INTERPRETING THE EXTENT OF THE LEGISLATIVE POWER CONFERRED BY ARTICLE 17 AND AVOID LEGISLATIVE MEASURES BEING HELD BY HONG KONG COURTS TO BE ULTRA VIRES ON COMMON LAW PRINCIPLES NOTHWITHSTANDING. THAT THEY ARE ENACTED IN ACCORDANCE WITH THE POWERS WHICH, IN THE CHINESE SYSTEM, ARE INHERENT IN THE GRANT BY THE NATIONAL PEOPLE'S CONGRESS OF LEGISLATIVE POWER.
CONTINUING QUESTIONS OF SUBSTANCE
8. ALTHOUGH THE FEBRUARY 1989 TEXT MADE A NUMBER OF CHANGES WHICH WE HAD PROPOSED FOR YOUR CONSIDERATION (AND I AGAIN EXPRESS OUR GRATIFICATION FOR THESE CHANGES) THERE REMAIN A NUMBER OF ISSUES, ADDITIONAL TO THOSE SET OUT ABOVE, WHICH WE HAVE DISCUSSED ON PREVIOUS OCCASIONS, BUT WHICH I WOULD URGE YOU TO CONSIDER FURTHER. I WILL DO LITTLE MORE THAN LIST THEM IN THIS LETTER, BUT I HOPE A MEETING WOULD ENABLE US TO CARRY ON THE DISCUSSION. EXAMPLES OF SUCH ISSUES ARE:
(A) THE QUESTION WHETHER AN EXPRESS PROVISION SHOULD BE
INCLUDED IN THE BASIC LAW FOR AN IMPLEMENTING PROVISION AS REGARDS THE JURISDICTION OF THE HONG KONG COURTS FOR MEMBERS OF THOSE PRC ORGANS WHICH ARE REQUIRED TO ABIDE BY THE LAW OF
THE HONG KONG SAR (ARTICLES 14 AND 22). YOU MAY RECALL WE SUGGESTED A FORMULA FOR YOUR CONSIDERATION ON THE FOLLOWING LINES QUOTE PROVISIONS FOR THE DETERMINATION BY THE COURTS OF
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