PRELIMINARY REPORT
FOCUSES OF DISCUSSION
(29 April
17 June)
1.1
The power contravenes
to
review whether
the Basic Law
piece of legislation
I.
(1)
Introduction
The public has
expressad opinions through the mass media, forums, Beminars and written submissions to the CCBL since the
publication of the "Draft Basic Law for Solicitation of Opinions" on 28 April. During their visit to Hong Kong on 4- 17 June. mainland members of the Drafting Committee held discussion Bessiona with more than 150 organisationa regarding the Draft Basic Law.
(11) This
report is based on the opinions collected during the promotion period (from the publication of the Draft Basic Law to mid-June). Since most of these opinions are initial responses. this report is only a preliminary collation for the five months of consultation. The report is not meant to be comprehensive and does not specifically describe the contents of individual opinions. Taking the responses in the
one and a half months as basis, the report aims at listing the major issues and tries to ourline the underlying fundamental probleme for clarification and study by the parties concerned. It is hoped that this will bring about in-depth consultation effectively and in the coming two months the public may thoroughly discuss the controversial issues. further express their opinions and find the solutions.
(iii) This
II.
1.
report only lists out the major issues. Different vieve and Analyses relating to these issues are not dealt with in the report. A comprehensive collation of the various opinions on the Draft Basic Law will be included in a general report on the consultation available at the end of the
consulation in October.
Росивев оf the Initial Response
Relationship between the Central Authorities
of
and the HKSAR
According to the Joint Declaration. the Hong Kong Special Administrative Region shall be directly under the authority the Central Government and shall enjoy a high degree of autonomy except for foreign and defence affairs which are the responsibilities of the Central People's Government... This Berves A8 the basis of the Central-HKSAR relationship. But regarding this basis and the future relationship between the Central authorities and the HKSAR, the public has different interpretations. Hence. A series of questions arises from the relevant provisions. These questions are summarised and issues which require clarification. addition and study are drawn out for the reference of the concerned.
parties
1.1.1 Focus of discussion:
(1)
The Joint
Article 16 of the Draft Basic Law provides that the Standing Committee of the National People's Congress shall have the power to review any law of the HKSAR. If it considers that the law is not in conformity with the Basic Law or legal procedures, it may return the law in question for reconsideration or revoke it.
Declaration provides that the laws of Hong Kong after 1997 must be in conformity with the Basic Law but does not specify who will be responsible for the review. This article in the Draft Basic Law has given rise to two queries. First, whether it would be appropriate for the NPC Standing Committee to do this job. Second, whether it would deprive Hong Kong courts of their present power of judicial review in this respect.
(11) From another angle, the review should be carried out by which body? An organ under the Central Government or the HKSAR courts? Or both?
1.1.2Questions to be resolved:
(1)
Does Article 16 imply that Hong Kong courts shall not have the power to review whether a law is in conformity with the Basic Law or legal procedures?
(11) If Hong Kong courts shall have such power, how is it related to the NPC Standing Committee in respect of such power? Is it feasible to have two organs vested with the power of review both at work at the same time?
(111) Are
1.2
Hong Kong courts enjoying the power of constitutional review under the present common law system? How do Hong Kong courts exercise their power of Judicial review in respect of ultra vires? Is it different from constitutional. review?
Application of nationwide laws in Hong Kong
1.2.1 Focus of discussion:
(1) Article 17 in the Draft Basic Law provides that laws, enacted by the NPC or its Standing Committee. which relate to defence and foreign affairs as well as other laws which give expression to national unity and territorial integrity and which. in accordance with the provisions of the Basic Law. are outside the limits of the high degree of autonomy of the HKSAR, may be applied in Hong Kong by way of promulgation or legislation on the directives of the State Council. Regarding the application of nationwide laws, Bome
14
1
2