TNAG-2073-FCO40-2952-Hong-Kong-Town-Planning-(Amendment)-Bill-1990-1990 — Page 2

Page

Foreign & Commonwealth

Office

14 December 1990

William Ehrman Esq Political Adviser Hong Kong Government

Dear Ehroom

London SWIA 2AH

Telephone: 071-

_HATS 265/1

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NCNA STATEMENT ON TOWN PLANNING (AMENDMENT) BILL: LEGAL ADVISERS'

1.

COMMENTS

One hopes that with your strong statement to the NCNA and Peking also taking action, this subject as an area of contention with Chinese will now fade away. We did, however, ask our Legal Advisers to comment as to whether, had this incident occured post-1997, the Chinese would have had a locus to interfere. I thought you might be interested in our Legal Advisers' thoughts on the matter to be kept in mind incase the question is reopened post-1997. The comments are

as follows.

2. The fact that an existing law may fall within an area which is within the high degree of autonomy of the SAR would not prevent it from being considered under Article 160 of the Basic Law. That Article enables the Standing Committee to declare the existing law to be in contravention of the Basic Law. The Standing Committee's competence under Article 160 is not limited by its competence under Article 17, but could extend to any case of inconsistency between the Basic Law and the Hong Kong statute. Although the original NCNA statement apparently referred to inconsistency with Article 40 of the Basic Law, the Heung Yee Kuk does not base its case on the traditional rights of the inhabitants of the New Territories. It puts its case on Article 105 of the Basic Law, which provides for the protection of the rights of individuals with regard to the use of property and their rights to compensation for lawful deprivation of property see also JD 86. It would be prudent for Hong Kong to be prepared, in case this issue is revived in seven years' time, to argue the

EELAJW

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