TNAG-2177-FCO40-3114-Hong-Kong-Bill-of-Rights-1990 — Page 194

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MDHOAN

2.

OPERATION OF THE HONG KONG LETTERS PATENT (NO 2) 1990 ON

1 JANUARY 1993.]

(4) IN THIS ARTICLE, QUOTE EXISTING LAW UNQUOTE MEANS ANY LAW IN FORCE IN HONG KONG IMMEDIATELY BEFORE THE MAKING OF THE

HONG KONG LETTERS PATENT (NO 2) 1990. UNQUOTE.

OUR PREFERENCE, WHICH IS SHARED BY STOCK, IS FOR A

BECAUSE: (A)

(B)

THE SUBSTANTIVE PROVISION IS CLOSER TO ART. 39

OF THE BASIC LAW: AND

IT IS A CLOSER DESCRIPTION OF THE COURSE OF EVENTS ENVISAGED BY THE BILL OF RIGHTS (BOR).

IT WOULD SUFFER FROM THE WEAKNESS THAT IF THE BOR WERE REPEALED BEFORE THE EXPIRY OF THE TWO YEARS MENTIONED IN THE PROVISO AND BEFORE ALL INCONSISTENT LAWS HAD BEEN REPEALED, THE LATTER WOULD NOT BE STRUCK DOWN. THIS, HOWEVER, IS SO UNLIKELY A CONTINGENCY THAT IT CAN BE DISREGARDED, THOUGH WE ARE CONSCIOUS OF THE FACT THAT THE DRAFT DOES NOT DIRECTLY INVALIDATE EXISTING INCONSISTENT LAWS EVEN AT THE EXPIRY OF THE TWO YEAR PERIOD.

3. THE DISADVANTAGE OF B IS THAT IT DOES NOT EXCLUDE THE ARGUMENT, HOWEVER FALLACIOUS, THAT THE BOR ITSELF IS

INCONSISTENT WITH THE COVENANT IN PERMITTING INCONSISTENT LAWS

TO REMAIN IN BEING.

4. NEITHER TEXT PRE-EMPTS A DECISION BY LEGCO ON THE FREEZE, THOUGH IN B THIS DEPENDS ON THE WORDS QUOTE UNLESS IS IS SOONER REPEALED UNQUOTE. THE POSITION IS CLEARER IN A.

HURD

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MAIN

76

.HONG KONG AGREEMENT

.(RESTRICTED)

LIMITED

HKD

DISTRIBUTION

79

PUSD

NEWS D

PS/LORD CAITHNESS

MR MCLAREN

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