SECRET
*
of the P_R_C
National Peoples
Congress
8. Article 67(4) of the Chinese Constitution provides for the Pe
paragraph
Standing Committee to interpret "statutes" of which the Basic Law is presumably one. However, given the JD provision quoted in parad
above, it will be necessary to ensure that the judicial authority of
the SAR's courts is fully preserved. For this reason, it would be
important to ensure that an interpretation of the Basic Law by the
NPC Standing Committee, in accordance with Article 67(4), should be
of a legislative, rather than a judicial nature, that is to say that
(now retrospective it should only take prospective effect. This could be made clear, for example, in a Basic Law provision. In consequence, the SAR's
courts would thereafter be bound by that
would have the force of an amendment to the Basic Law regardless of
the form it took.
9.
interpretation interpretation since it
In connection with the power of the SAR's courts in interpreting
have no powers
to
the Basic Law, some people/suggested that the SAR's courts should interpret the Basic Law in respect of areas outside the SAR's autonomy. Such a suggestion presumably has regard
primarily to the provision in Annex I, Section I of the Joint
Declaration:
10.
"Except
\ Central Peoples Covernment
for foreign and defence affairs which are the responsibilities of the G, the HK SAR shall be vested with
executive, legislative and independent judicial powers,
including that of final adjudication."
Tha
The situation is, however, likely to be more complex. In exercising their judicial powers,
the SAR'S cou
courts will need to
SAT K decide cases in accordance with the laws of Hong Kong, which are the Basic Law, and the laws previously in force and laws enacted by the SAR legislature. An issue relating to the Basic Law could arise in
the course of a civil dispute between two parties which are affected by the consequences of executive or legislative acts. In such a
case it may be necessary for the court to decide whether an SAR
executive or legislative act has strayed into foreign or defence
matters, and thus infringed the Basic Law and acted ultra vires. In
such circumstances, if the SAR's courts are unable to interpret the
relevant parts of the Basic Law (independently) the case could well
been
人
-3-
SECRET