TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 42

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Chinese constitution.

You replied that Chinese legal experts had decided that there was no contradiction between the terms of the BL and Chinese law.

4. Sir William Goodhart said he was worried about the power which the Basic Law vested in the National Peoples Congress, to invalidate laws which it regarded contrary to the Basic Law. That should be the responsibility of the Judiciary not of the NPC. The ICJ felt it would be useful if the task of deciding which laws would be contrary to the Basic Law could be completed before 1997. That would contribute to a smooth transition as required by the JD. Was there any intention of carrying out that process? You replied that the process of adapting Hong Kong's laws had already started and was expected to continue for a long time. Because of references contained in them, many of Hong Kong's laws would not be consistent with the BL after 1997. There would also be some need for adapting the substantive content of some of Hong Kong's laws. The Chinese could not give up the rights of the NPC to scrutinise laws after 1997, but if agreement had been reached on them in the adaptation process there was little practical prospect of them being found contrary to the Basic Law. We had resisted Chinese proposals to consult them on all new laws. That would make Hong Kong ungovernable. There had been occasions when we had in fact consulted them (for example on the Bill of Rights) although we hadn't accepted that we would necessarily take account of their views. Mr Dowd said that, if one assumed the BL was contrary to the JD, surely the JLG was obliged to discuss this. You replied that we had discussed the BL with the Chinese side though the latter maintained it was not a suitable subject for the JLG. But our lawyers believed that actual breaches of the JD by the Basic Law were not very significant.

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Sir William Goodhart said that one matter of concern for the ICJ was that neither the BL nor the JD covered, explicitly or implicitly, the question of conscription. was contrary to the spirit of the JD that residents of the SAR should be subject to conscription into the PLA after 1997. You replied that the Chinese had several times stated publicly back in 1983/84 that they had no intention of imposing conscription. But they were not prepared to write it into the Basic Law or the JD, as they claimed that was contrary to their sovereignty over the future SAR. The British side had initially wanted the JD or the BL to cover that question but we did not believe now that there was a serious risk of it ever coming about.

5. Returning to the question of CFA, Mr Dowd suggested that time was against Hong Kong. The pool of judges, both those eligible and those prepared to serve on the CFA, was shrinking, as potential candidates gradually lost confidence

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