TNAG-2991-FCO40-3566-Future-of-Hong-Kong-constitutional-development-1992 — Page 83

ODE 18-77

CONFIDENTIAL

From:

Reference.

Ms J Barrett

p. Auctions

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Assistant Legal Adviser

K 174 270 3381

Date: 9 June 1992

CC:

Miss S Brooks

Mr Wye, RAD

Mr Seaton, FED

Miss Saunders, HKD

1

Mr Cox HKD

AMENDING THE BASIC LAW

DEMOCRATIZATION

1. I refer to your minute of 1 June, and your minute of 28 May to Miss Brooks (which she passed to me), requesting advice on the possibilities of amending the Basic Law before 30 June 1997. I apologise for the delay in replying.

2. It must be right to say that the amendment procedure set out in Article 159 of the Basic Law cannot be used until the Law comes into force. The power of amendment conferred by Article 159 has no legal force until then, and nor will the Committee for the Basic Law, which Article 159 requires to be consulted before a bill for amendment is put on the agenda of the National People's Congress, be in existence before that date.

3. The only question at issue would seem to be whether the normal constitutional powers of the NPC and its Standing Committee can be used to amend the Basic Law, before 30 June 1997 or at all.

4. Under Article 62 of the PRC Constitution, the NPC has the power to enact and amend basic statutes (of which the HK Basic Law is one). Under Article 67, the Standing Committee of the NPC has the power to enact, when the NPC is not in session, partial supplements and amendments to statutes enacted by the NPC provided they do not contravene the basic principles of these statutes.

5. Since the Constitution has superior legal force to any statute, it would seem logical to me to suppose that powers conferred by it on the NPC and Standing Committee would not be displaced by a statute. I would therefore have expected those bodies to consider themselves to retain the power to enact amendments in the ordinary way. According to this view, before 30 June 1997 this would be the only available method of amending the Basic Law, but after that date the two routes to amendment would exist concurrently. (This is, incidentally, similar to the question whether the Standing Committee of the NPC will retain the ability to exercise its power under Article 57 of the Constitution to interpret the BL

CONFIDENTIAL

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