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MINUTES OF PROCEEDINGS OF
PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT
The Committee deliberated.
WEDNESDAY 28 JUNE 1989
Members present:
Mr David Howell in the Chair
Mr Dennis Canavan
Mr Michael Jopling
Mr Ivan Lawrence Mr Ted Rowlands Mr Peter Shore
Draft Report [Hong Kong] brought up and read.
Mr Ian Taylor
Mr Peter Temple-Morris Mr Bowen Wells
Mr Michael Welsh
Motion made, and Question proposed, That the Chairman's draft Report be read a second time paragraph by paragraph-(The Chairman.)
Paragraphs 1.1 to 1.5 read and agreed to.
Paragraph 1.6 read, amended and agreed to.
Paragraph 1.7 read and agreed to.
Paragraph 1.8 read, amended and agreed to.
Paragraphs 1.9 and 1.10 read and agreed to.
Paragraph 2.1 read and agreed to.
Paragraphs 2.2 and 2.3 read, amended and agreed to.
Paragraphs 2.4 to 2.7 read and agreed to.
Paragraph 2.8 read, as follows:
"The Joint Declaration promises that the Hong Kong SAR shall have 'independent judicial power, including that of final adjudication'. In a memorandum to the Committee, the FCO stated 'since the Basic Law will be a law enacted by the Chinese National People's Congress, it is clearly not possible to exclude that body entirely from its normal involvement in the process of interpretation'. But the 'normal involvement' of the legislature in the interpretation of the law would not be recognised in Britain nor in other Western democracies. In the common law tradition, which has been the basis of legal practice in Hong Kong under the British administration, it is the courts which interpret the law. If 'After the establishment of the Hong Kong Special Administrative Region the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained', then the role of the courts (and especially of the Court of Final Appeal) as interpreters of those laws should also be maintained. As Ms Gladys Li, herself a barrister, told us in evidence in Hong Kong ‘The Joint Declaration . . . provides... that there will be set up in Hong Kong a final court of appeal. I have... interpreted that as meaning that the jurisdiction previously enjoyed by the Judicial Committee of the Privy Council, which includes judicial interpretation of the most basic and fundamental constitutional questions, will similarly be enjoyed by the court of final appeal in Hong Kong'. Mr Andrew Wong, Chairman of the OMELCO Standing Panel on Constitutional Development, told us that he thought it important to find 'methods of doing away with legislative interpretation, because legislative interpretation is essentially political'. He suggested a couple of ways in which it might be done. It must, in our view, involve a form of Joint Constitutional Court to which the Standing Committee of the National People's Congress would delegate its interpretative functions. The present political repression within the PRC demands that a form of constitutional court be established for the Hong Kong SAR to provide the necessary trust and confidence in the judicial independence promised in the Joint Declaration.”
Amendments made.
Amendment proposed, in line 19, to leave out from “done” to the end of the paragraph and insert: "Total confidence in the legal system is a vital prerequisite for social stability. In our view, the confidence of the people of Hong Kong that the laws existing before the creation of the Hong Kong Special Administrative Region are being maintained will exist only if there is a Constitutional Court situated in Hong Kong which will continue to interpret the laws in accordance with the legal principles that have hitherto held sway in the Territory. We are hopeful that the Standing Committee of the National People's Congress would wish to delegate its interpretative powers to that Constitutional Court, in order to generate the complete trust in the independence of the Hong Kong judicial system envisaged in the Joint Declaration"--(Mr Ivan Lawrence.)