1892
HONG KONG LEGISLATIVE COUNCIL · 14 July 1988
paragraph, for it provides in effect that whenever a case comes up before the HKSAR courts involving the interpretation of an article of the Basic Law regarding 'defence, foreign affairs [or] other affairs which are the responsibilities of the Central Government', the HKSAR courts must not construe the relevant article, but must adjourn the case and refer the question to the Standing Committee of the NPC for a determination. After that, the case will resume, but the judge is bound by the interpretation put on the relevant article by the Standing Committee of the NPC.
This totally unacceptable formula has come about because it is feared by the Mainland members that the HKSAR courts 'might get it wrong' while construing an article of the Basic Law pertaining to 'defence and foreign affairs [or] other affairs which are the responsibilities of the Central Government', so that embarrassment may be caused to the CPG, for example, on a matter involving foreign affairs which may affect the good relations with a friendly nation; and that this embarrassment may be irreversible because the right of final adjudication has been given to the HKSAR.
Sir, the problem is twofold. First, unlike our legislature which has no power to interpret laws, the Standing Committee of the NPC is entitled, and indeed enjoined, by the Chinese Constitution to interpret all the laws of China. Secondly, although the People's Supreme Court is also empowered to interpret all the laws of China, all the judges in the PRC are under the influence of the Chinese Communist Party and they often take the advice of the party. The result is that very few decisions handed down by the courts in China are ever likely to be unacceptable to the party or the CPG. The Mainland members are therefore reluctant to give unfettered power of interpretation of the Basic Law to the courts of the HKSAR, particularly when the right of final adjudication has been given to the HKSAR by the Joint Declaration. But this is due to their inability to accept or appreciate the importance of the independnece of the judiciary. For even if the Court of Final Appeal were to be in Beijing instead of Hong Kong, so long as the judges of that court were truly independent, some of their judgments would still be thought to be unacceptable by the party or CPG. And since it is the avowed objective of the PRC to keep the judiciary of the HKSAR independent, the fact that the HKSAR has been given the right of final adjudication cannot be a valid reason for limiting the jurisdiction of the courts of the HKSAR in their interpretation of the Basic Law.
The provision requiring the courts of the HKSAR to refer the interpretation of any provision of the Basic Law 'concerning defence, foreign affairs [or] other affairs which are the responsibility of the CPG' to the Standing Committee of the NPC before 'making their final judgment on the case' represents an attempt to follow the practice in English courts relating to the interpretation of a treaty of the European Economic Community. For in the United Kingdom, before the House of Lords gives final judgment in a case involving the interpretation of such a treaty, it is required to refer the point to the Court of Justice of the European Communities for its interpretation. But in relation to lower courts,