Job No. 166880
HANSARD//JUL14:05
1888
HONG KONG LEGISLATIVE COUNCIL - 14 July 1988
Article 169: in effect takes away the power of the courts of the HKSAR in their interpretation of certain provisions of the Basic Law, including 'other affairs which are the responsibility of the CPG'.
Sir, all these articles, in my view, are in clear breach of the Joint Declaration, for they cover matters other than defence and foreign affairs.
Articles 18 and 169
Sir, I am therefore glad that members of the Constitutional Development Panel (the panel) have been able to reach consensus on a number of controversial articles including articles 18 and 169; and I have been given the task of presenting the views of the panel on these two articles.
But first, it may be helpful to Members if I were to give a short historical background.
For a considerable time, Mainland members of the first subject subgroup of the BLDC on the relationship between the Central Authorities and the Hong Kong Special Administrative Region wanted to limit the jurisdiction of the courts of the HKSAR in their interpretation of the Basic Law to only those articles dealing with matters within the autonomy of the HKSAR. This formulation met with strong objections from some Hong Kong members of the drafting committee. And ultimately it was decided to give the courts of the HKSAR unlimited jurisdiction to interpret the Basic Law but to define the jurisdiction of the courts of the HKSAR in another article in Chapter IV, whereby the present limits on the jurisdiction of the Hong Kong courts will continue to be effective after 1997. For this reason, article 169 deals with the interpretation of the Basic Law, while article 18 deals with the jurisdiction of the courts of the HKSAR.
Article 18
The first two paragraphs of this article are unobjectionable and they read:
'The Hong Kong Special Administrative Region is vested with independent judicial power, including that the final adjudication.
Courts of the Hong Kong Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions of their jurisdiction imposed by Hong Kong's previous legal system shall be maintained.'
As to be third paragraph, it provides that 'Courts of the HKSAR shall have no jurisdiction over cases relating to 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."
This formulation is unacceptable. For although under the common law, certain cases are not justiciable in our courts today, this formulation casts a wider net of exclusion than under the present system. The following are some