CONFIDENTIAL
056273
MDHOAN 8087
AND THAT THE BASIC LAW IS ENACTED IN ORDER TO ENSURE THE IMPLEMENTATION OF THOSE BASIC POLICIES. THUS THERE IS A CLEAR LINK BETWEEN THE OBLIGATIONS ASSUMED BY THE PEOPLE'S REPUBLIC OF CHINA IN THE JOINT DECLARATION AND THE BASIC LAW. OUR CONCERN THROUGHOUT THE DRAFTING PROCESS HAS OF COURSE BEEN TO ENSURE THAT THE BASIC LAW IS CONSISTENT WITH THE PROVISIONS OF THE JOINT DECLARATION. ON THE WHOLE WE CONSIDER THE BASIC LAW TO BE AN ACCEPTABLE REFLECTION OF THE JOINT DECLARATION, ALTHOUGH THERE ARE INEVITABLY SOME PROVISIONS WHICH WE WOULD HAVE PREFERRED TO HAVE SEEN DRAFTED DIFFERENTLY.
3. THE GOVERNMENT NOTES THE CONCERN OF THE COMMITTEE AS TO WHETHER THE PROVISIONS OF ARTICLE 31 OVERRIDE OTHER ARTICLES OF THE CHINESE CONSTITUTION AND THE SUGGESTION THAT THE PREAMBLE SHOULD SET OUT CLEARLY WHICH ARTICLES OF THE CONSTITUTION APPLY
TO THE HONG KONG SPECIAL ADMINISTRATIVE REGION. THE HONG KONG SPECIAL ADMINISTRATIVE REGION WILL BE AN INTEGRAL, IF SPECIAL, PART OF THE UNITARY STATE OF THE PEOPLE'S REPUBLIC OF CHINA.
CERTAIN PROVISIONS OF THE CHINESE CONSTITUTION WILL THEREFORE APPLY IN OR IN RELATION TO HONG KONG, EVEN THOUGH THEY MAY NOT HAVE DIRECT EFFECT AS LAW. IT WOULD NOT BE REALISTIC TO DISMISS ALL BUT ARTICLE 31 AS HAVING NO RELEVANCE. BUT ARTICLE 11 OF THE
BASIC LAW MAKES CLEAR THAT THE SYSTEMS AND POLICIES PRACTISED IN THE SAR QUOTE INCLUDING THE SOCIAL AND ECONOMIC SYSTEMS, THE SYSTEM FOR SAFEGUARDING THE FUNDAMENTAL RIGHTS OF ITS RESIDENTS, THE EXECUTIVE, LEGISLATIVE AND JUDICIAL SYSTEM UNQUOTE WILL BE BASED ON THE BASIC LAW AND ARTICLE 5 SPECIFICALLY STATES THAT THE
SOCIALIST SYSTEM AND POLICIES SHALL NOT BE PRACTISED IN HONG KONG BUT THAT THE CAPITALIST SYSTEM AND WAY OF LIFE SHALL REMAIN
UNCHANGED FOR 50 YEARS. THE GOVERNMENT WOULD ALSO DRAW THE COMMITTEE'S ATTENTION TO A DECISION OF THE NATIONAL PEOPLE'S
CONGRESS ALSO ADOPTED ON 4 APRIL WHICH IS APPARENTLY DESIGNED TO
DEAL WITH THE EXTENT OF THE POWER UNDER ARTICLE 31 OF THE CHINESE
CONSTITUTION TO PRESCRIBE SPECIAL AND DIFFERENT QUOTE SYSTEMS
UNQUOTE TO THOSE APPLICABLE UNDER THE CONSTITUTION ELSEWHERE IN
PEOPLE'S REPUBLIC OF CHINA.
INTERPRETATION OF THE BASIC LAW
4. THE GOVERNMENT NOTES THE COMMITTEE'S VIEWS ABOUT THE NEED FOR
A JOINT CONSTITUTIONAL COURT TO INTERPRET HONG KONG LAWS (PARAGRAPH 2.8). THIS IDEA WAS INDEED CANVASSED BUT DID NOT FIND
FAVOUR WITH THE BASIC LAW DRAFTING COMMITTEE. SINCE THE BASIC LAW IS A LAW OF THE PEOPLE'S REPUBLIC OF CHINA, THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS, WHICH IS THE RELEGANT ORGAN, CANNOT BE EXCLUDED ENTIRELY FROM THE INTERPRETATIVE FUNCTION CONFERRED ON IT BY THE CONSTITUTION OF
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