HONG KONG LEGISLATIVE COUNCIL 14 July 1988
1893
the practice is wholly different, and it may assist Members if I set out some of the relevant legal principles relating to all English courts except the House of Lords, as they have not been taken into account:
(a) the Court has a full discretion on deciding whether to refer the point of
construction;
(b) the Court will not refer the point unless it considers it necessary to enable
it to give judgment;
(c) in deciding whether to refer, the Court will take into consideration
(among other things) the delay, the expense, and the effect on the trial; (d) for the point to be referred, it must be such that a decision on it would be
conclusive of the very case before the Court in the United Kingdom; (e) if the same point has already been decided by the European Court in a previous case, it will not be necessary to refer it to the European Court again, and it will not be referred;
(f) if the point is reasonably clear and free from doubt, there is again no
need to refer, and it will not be referred; and
(g) it is only when all the essential facts have been decided that the Court would consider whether it should refer the point to the European Court. Sir, in addition, the Court of Justice of the European Communities is an independent judicial body composed of experienced and renowned judges from the various member states of the European Economic Community. The process of interpretation is regulated by judicial procedures which allow representations to be made to the European Court on behalf of the parties. Therefore, the referral procedure has not eroded into the judicial indpependence of the English courts. However, the Standing Committee of the NPC is part of a legislative body; and the composition and the manner of operation of the Basic Law Committee, which is to advise the standing committee before the latter interprets the Basic Law, is not well-defined. For these reasons, it is inapposite to compare our problem to the referral procedure to the European Court by the English courts.
I am therefore glad that members of the panel have reached consensus on this article. We feel that the courts of the HKSAR should have power to interpret all the articles of the Basic Law. And while recognising that the Standing Committee of the NPC has the constitutional power and duty to interpret the Basic Law, we feel that the Standing Committee of the NPC should irrevocably delegate its power to interpret those articles of the Basic Law within the scope of the HKSAR's autonomy to the HKSAR courts when adjudication cases. Às to the other articles which fall outside the scope of the HKSAR's autonomy, we feel that the Standing Committee of the NPC can, if it thinks fit, interpret them, provided that its interpretation, if contrary to that put on the same article by the HKSAR courts, shall not affect the result of all cases previously decided.
Sir, I believe that Members' views on this article can be dealt with by amending it as follows: