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HONG KONG LEGISLATIVE COUNCIL · 14 July 1988
1899
The Joint Declaration provides that the SAR be vested with the powers of the administration and legislation on an independant judiciary with the power of final adjudication. The reason why it is worrying is that the NPC retains the power of interpretation of the Basic Law, and it is, even now, the Legis- lative Council, which enjoys legislative power, does not have the power of interpretation of laws. This is certainly a case of the executive intervening in the judiciary. Where, I ask, goes the principle of an independant judiciary? Moreover, the power of final adjudication would loose its integrity under Central Government intervention. The Joint Declaration clearly provides that certain Common Law would continue to apply after 1997, and according to the Common Law system, all laws enacted by the legislature are to be interpreted in the courts. Neither the executive nor the legislature have this power. In China, however, the situation differs completely. The National People's Congress, as the legislature, and its standing committee, holds the power of interpretation of all laws in China, including the constitution, thus the powers conferred on the Standing Committee of the NPC are alien to the Common Law system. Confusing the two systems will bring about a crisis in the SAR's legal system of serious proportions. I, therefore, recommend that we follow the system in which the US Supreme Court interprets the American Constitution, and let the Court of Final Appeal of the SAR decide whether laws enacted by the legislature are constitutional.
Of the relationship among the three governmental powers, the most import- ant element I believe is the monitoring function of the legislature. The Joint Declaration states that legislative power is vested with the SAR legislature, and that the executive authorities should be accountable to the legislature. However, the legislative and monitoring powers of the legislature envisaged in the draft Basic Law are inadequate, and in many ways restrictive.
Bills involving government policy and public expenditure cannot be proposed by members of the legislature and laws passed do not take effect until endorsed by the Chief Executive, who may not sign a Bill that has been passed. The legislature would be dissolved if it insisted, or for that matter, if it refused, to approve the Budget or any other important Bills. Then if the Standing Com- mittee of the NPC is not happy with a piece of legislature, though passed. and regards it as a breach of the Basic Law, it would be repealed or returned for reconsideration. On matters of defence, foreign affairs, and for the sake of national unity and territorial integrity, the Standing Committee of the NPC may direct the legislature to enact laws, or simply promulgate laws directly. The legislature would not have the power to investigate the actions of the executive authority nor could it impeach principal officials. The power to impeach the Chief Executive is far to narrow. Article 64 interprets the accountability of the executive to the legislature in an excessively narrow way, confining it to enforcement of law, reports, answering questions, and approving public ex- penditure. I am, therefore, in favour of genuine and full legislative and monitoring powers for the legislature, including the powers of investigation and