Job No. 166880
HANSARD JUL13:06
HONG KONG LEGISLATIVE COUNCIL - 13 July 1988
1837
legislative interpretation of the constitution in the wake of court cases or in the determination as to the 'constitutionalty of subservient laws and act is totally alien to Hong Kong or any country in the capitalist world, but is common-place to all countries which adopt democratic centralism. The problem, therefore, is one of interface between the two systems. Members are of the view that this power of interpretation could be delegated to the courts of the Hong Kong Special Administrtive Region. Alternatively and as a minimum, Members consider that the courts of the region should be empowered to interpret all the provisions in the law without prejudicing the power of interpretation of the Standing Committee of the National People's Congress on matters which fall outside the limits of the region's high degree of autonomy, and that inter- pretations made would be binding on the courts, but cases under adjudication and judgments previously rendered should not be affected. It would appear that with either solution, adopted article 16 is redundant.
As to the question of amending the Basic Law, Members agree that the power belongs to the National People's Congress. but that the right to propose amendments should be restricted to the Standing Committee of the National People's Congress and to the Hong Kong Special Administrative Region's Chief Executive and legislature. Article 170 should therefore be appropriately redrafted to the effect that should the Standing Committee wishes to propose an amendment, the Basic Law Committee and the Special Administrative Region's Chief Executive and legislature should be consulted, and that should the region's Chief Executive and legislature propose an amendment, the standing committee should consuit the Basic Law Committee. Members are of the opinion that deputies from the region to the National People's Congress should not develop into an organ of power in the region. Members are also of the view that provisions ought to be made in the Basic Law itself governing the composition and functions of the Basic Law Committee.
(5) Civil rights. Members generally agree that Chapter III should essentially be a chapter on civil rights enjoyed by all people in the Special Administrative Region. As such, some articles in addition to article 23 could be removed to other chapters. For example, article 25 could be in Chapter IV on infrastructure. Members find the provisions in and the drafting of this chapter to be wanting. For example, article 39 as drafted casts too wide a net in favour of the executive and legislative authorities and provides inadequate safeguards to individual freedoms. The use of the term 'unlawful' instead of "arbitrary' in articles 27 and 28 produces the same effect. Members are including that less than drastic redrafting is required to model the chapter on the International Covenant on Civil and Political Rights and/or to at least provide for the enforceability of the said international covenant.
(6) Preservation of the economic and social systems. Members are of the view that preservation of the existing systems should not be at the expense of continued evolution and development. For example, on article 142 in Chapter VI. Members feel that the spirit of the Joint Declaration should be: (a) that
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