TNAG-2103-FCO40-2995-Future-of-Hong-Kong-exchanges-with-the-Chinese-on-the-Basic--1990 — Page 134

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE FCO

TELNO 646

OF 20123OZ FEBRUARY 90

CONFIDENTIAL

HKC012/3

12 MAR 1990

PLCISTRY

DESK OFFICER

NDEX

PA

Action Taker.

INFO PRIORITY PEKING, UKREP JLG HONG KONG

****

20

161655

MDHIAN 7731

AMENDMENTS TO BASIC LAW: OVERALL ASSESSMENT

1. WE HAVE MADE A QUICK COMPARISON BETWEEN THE 24 AMENDMENTS ADOPTED BY THE PLENARY SESSION OF THE BASIC LAW DRAFTING COMMITTEE AND THE SECOND DRAFT OF THE BL. EXCEPT FOR AMENDMENTS TO THE ANNEXES AND APPENDICES, THEY ARE IDENTICAL TO THE AMENDMENTS PROPOSED BY THE BLDC SPECIAL GROUPS IN GUANGZHOU IN DECEMBER 1989 AND FAXED TO HKD ON 25 JANUARY 1990. OUR COMMENTS ON THE AMENDMENTS OTHER THAN THOSE ON CONSTITUTIONAL DEVELOPMENT (FIFOOT'S ANALYSIS FAXED TO US ON 28 DECEMBER 1989 HAS BEEN TAKEN INTO ACCOUNT) ARE AS FOLLOWS:

(1) ART. 18, PARA. 4. THE ADDITION OF THE WORDING 'THAT ENDANGERS NATIONAL UNITY OR NATIONALITY SECURITY'' LIMITS THE SCOPE OF THE STANDING COMMITTEE OF THE NPC FOR DECLARING A STATE OF EMERGENCY. THIS IS HELPFUL. BY IMPLICATION, THE HKSAR IS LEFT TO HANDLE OTHER EMERGENCIES:

(2) ART. 19, PARA. 3. THE QUALIFICATION OF 'ACTS OF STATE'' BY ''SUCH AS DEFENCE AND FOREIGN AFFAIRS'' IS UNHELPFUL IN THAT IT WIDENS THE SCOPE OF ''ACTS OF STATE

''ACTS OF STATE'' WITHOUT ANY CLEAR LIMITATION. HOWEVER, OMISSION OF THE TERM ''CASES RELATING TO'' IS USEFUL IN THAT SAR COURTS CAN NOW ADJUDICATE CASES WITHOUT BEING CHALLENGED ON GROUNDS THAT THOSE CASES RELATE TO 'ACTS OF STATE''.

(3) ART. 22, PARA. 4. AN IMPROVEMENT, THOUGH IT STILL FALLS SHORT OF THE JD. ''PRESENT PRACTICE'' IN JD 165 COVERS MORE THAN JUST THE NUMBER OF PEOPLE ADMITTED AND CONSULTATIONS WITH SARG.

(4) ART. 23. UNWELCOME. THE ONLY CONSOLATION IS THAT THE SAR IS TO ENACT ITS OWN LAWS AND THEREFORE COMMON LAW PRINCIPLES WILL APPLY. (SEE ALSO FIFOOT'S COMMENTS IN HIS FAX OF 28 DECEMBER 1989.)

(5) ART. 24, PARA. 2(4). THIS CREATES A SERIOUS PROBLEM FOR NON- CHINESE WHO WERE BORN IN HONG KONG AND THUS HAVE NOT ''ENTERED HONG KONG WITH VALID TRAVEL DOCUMENTS'' AND FOR THEIR CHILDREN. THIS IS

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