Some
Hong Kong the Basic
conformity
criticise that these provisions which were not laid down in the Joint Declaration might be suspected of contravening the Joint Declaration.
worry that because of different systems, the application of natonwide laws in might have undesirable effect. But apart from Law. the lawa previously in force which are in with the Basic
and the laws enacted by the HKSAR legislature. some nationwide laws not only those relating to defence and foreign affairs, but also those relating to state affairs such as the laws on territorial waters and the establishment of the capital shall obviously be applied in Hong Kong.
Law.
The legislative restriction
(11) This issue could be seen from another angle.
power of the future HKSAR will be subject to a other than the Basic Law
it may not touch upon affairs outside the SAR (1.0. nationwide affairs) though these affairs may directly affect residents of the SAR. and these affaire may not be limited to defence and foreign affairs alone. The legislative power relating to these affairs may only be enjoyed by a state organ. Hence the application nationwide laws in Hong Kong is necessary.
of
(111) The discussion
should therefore focus on the procedure required for the application of these laws
1.2.2Questions to be resolved:
1.3.1Article 18 of the Draft Basic Law provides that courts of to the HKSAR shall have no Jurisdiction over cases relating defence and foreign affairs, which are the responsibility of the Central People's Government, and cases relating to the executive acts of the Central People's Government. According to this article,
HKSAR will the jurisdiction of courts after 1997 be different from that of the present Hong Kong courts?
At present. Hong Kong courts may have Jurisdiction over cases relating to the executive acts of the British Government, but since the power of final adjudication for all cases is vested in Britain instead of Hong Kong. there will not be any inconsistency between the regional constitutional structure and the interest of the sovereign state. The core of the problem is that after 1997 Court of Final Appeal will be established in Hong Kong and the judicial system of Hong Kong will be separated from that of its sovereign state. Would it be appropriate for Hong Kong courts. as regional courts within a state and with the power of final adjudication. to have jurisdiction over cases relating to the executive acts of the Central Government of the state. This is a major problem in the Judicial system of the SAR under the policy of one country.
the
two systems.
1.3.2Questions to be resolved and clarified:
Under the present system, what restrictions are the Hong Kong courts subject to?
(1)
(1)
At present, which nationwide laws will be applicable to the future HKSAR?
(11) As Hong Kong courte will become regional courts vested
the power of final adjudication, in what way will Jurisdiction be affected?
with
their
Will
(11) In what way will the nationwide laws applicable to Hong Kong
be listed?
they be listed in an annex to the Basic Law?
(111)Will the enforcement of nationwide laws be within the jurisdiction of Hong Kong courts or will they be directly enforced by the relevant authorities under the Central Government? If Hong Kong courts shall have Judicial power over cases which concern the violation of nationwide
laws, what will be the relationship between the relevant under the Central Government and Hong Kong courts in respect of this power and function?
authorities
(iv) It was proposed that nationwide laws should be applied
through
legislative procedure in Hong Kong.
have yet to be clarified and added.
?
1.3
Jurisdiction
The
(111) What are the executive acts of the Central Government? Who shall decide whether a case relate to the executive act of the Central Government?
(iv) Will some of the commercial acts of state-owned enterprises or financial and economic units be considered executive acts of the Central Government?
1.4
Interpretation of the Basic Law
1.4.1 Focus of discussion:
details
(1)
power
Article 169 of the Draft Basic Law provides that the of interpretation of the Basic Law shall be vested in the NPC Standing Committee. It further provides that if a case involves an interpretation of the provisions of the Basic Law concerning defence, foreign affairs and other affairs which are the responsibility of the Central People's Government, the HKSAR courts, before making their final Judgment on the case shall seek an interpretation of the relevant provisions from the NPC Standing Committee.
4