TNAG-2487-FCO40-3618-Future-relations-between-Hong-Kong-and-China-1992 — Page 118

CODE 18-77

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The JD defines the HK area as "including HK Island, Kowloon and the New Territories". The Preamble to the BL makes explicit reference to the S-B JD, and makes clear that the BL has been enacted in order to ensure the implementation of the basic policies of the PRC regarding HK, which have been elaborated by the Chinese Government in the JD. There can be no doubt therefore that the territorial scope of the BL corresponds exactly to that of the JD.

As HK suggest (page 2), BL40 can also be cited in support of this. However, their last reference to "compatibility" of the NT Leases

(Extension) Ordinance is confusing, and might be better rephrased: "the provisions of BL 121 and 122 concerning land leases in Hong Kong can only be interpreted in the context of the New Territories Leases (Extension) Ordinance, which applies only to the New

Territories."

5.

Page 25 (last paragraph): validity of the BL under the PRC Constitution.

Comment

(i) According to common law methods of legal analysis, the PRC Constitution ought to be amended to make clear that the adoption of capitalism in an SAR is compatible with it. But the ICJ's analysis does not take fully on board the fact that the PRC legal system is based on the principle that laws are interpreted by the legislature, not the judiciary. Their concern is therefore somewhat theoretical.

(ii) I would suggest that HKG's commentary, page 3, second, third and fourth sentences, be rephrased to read: "They say that the PRC Constitution needs amendment, which would probably be correct if their Constitution were interpreted through the eyes of a common lawyer.

However, under the PRC Constitution, the ultimate power of interpretation of laws is vested in the NPC Standing Committee. The NPC itself adopted a Decision on the Basic Law on 4 April 1990 which includes reference to Article 31 of the Constitution, followed by the statement that "The BL of the HKSAR is constitutional as it is enacted by the NPC in the light of the specific conditions". It is difficult to see how this could be other than conclusive of the legal position as far as the PRC is concerned.

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Draw on (ii) above.

CHAPTER IV: FINDINGS OF FACT

6.

The Electoral system: compatibility with the ICCPR and BOR

(ICJ; page 31 and HKG P4).