Interpretation of the Basic Law
5. The Committee expressed the view that Hong Kong people would only have confidence in the maintenance of the laws existing before the creation of the Hong Kong SAR if there was a Joint Constitutional Court situated in Hong Kong to interpret Hong Kong laws (paragraph 2.8). This idea was indeed canvassed but did not find favour with the Basic Law Drafting Committee. The Basic Law is not only a law for Hong Kong but is also a law for the PRC and under the Chinese Constitution the power to interpret such laws is vested in the Standing Committee of the National People's Congress. However, a wide power of interpretation is vested in the SAR courts and, in those cases where the Standing Committee of the National People's Congress exercises its powers of interpretation, Article 158 of the Basic Law requires it first to consult the Hong Kong SAR's Basic Law Committee. Half the members of this Committee will come from Hong Kong.
Human Rights
6. The Committee recommended that the Hong Kong Government should introduce a Bill of Rights as soon as possible (paragraph 2.11). The Hong Kong Government have now done so. A draft Bill of Rights was published on 16 March 1990 for a two month period of public consultation. The Hong Kong Government intend to introduce legislation into the Legislative Council by July 1990.
7. The Bill is designed to give effect in local law to the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. This would enable those who claim that their civil or political rights as defined in the relevant provisions of the Covenant have been violated to seek redress in the local courts. Consideration is being given to ways of ensuring that, during the period up to 1 July 1997, the rights and freedoms conferred by the Bill are not restricted in a manner inconsistent with the Covenant. After 1997, Article 39 of the Basic Law will itself restrict the powers of the SAR legislature to derogate from the rights and freedoms accorded by the Covenant as applied to Hong Kong. This Article provides that the provisions of the Covenant as applied to Hong Kong "shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region "; and that the freedoms so enjoyed shall not be restricted so as to contravene that provision.
8. The Committee also recommended that the Hong Kong Government should review existing laws to identify areas in possible breach of the international covenants. Such a review is in hand. The present intention is that there should be a freeze period following the enactment of the Bill of Rights during which any provision in an existing law which plainly conflicts with the ICCPR may be repealed or amended.
Article 18 of the Basic Law
9. The Committee took the view that Article 18 of the draft Basic Law needed revision in order to limit the powers of the central government to interfere in the maintenance of public order in the Hong Kong SAR only to a time of war (paragraph 2.12). In this respect, the final version of Basic Law is an improvement on the second draft. Article 18 has been amended to provide for the Central Authorities to intervene by applying relevant national laws in a state of emergency other than war only if the turmoil is both beyond the control of the Government of the SAR and endangers national unity or national security.
Amendment of the Basic Law
10. The Committee took the view that all proposed amendments to the Basic Law should have the agreement of both the Standing Committee of the National People's Congress and of the Legislative Council and Chief Executive of the Hong Kong SAR before being submitted to the National People's Congress. The Committee also took the view that the final paragraph of Article 158 of the draft Basic Law (Article 159 in the final version) should be amended so as to make clear that the reference in that Article to "the established basic policies of the PRC regarding Hong Kong" are those set out in the Joint Declaration (paragraph 2.14). The enacted text of the Basic Law does not contain such a provision though proposals for amendment which emanate from the SAR are required to have the prior consent of two thirds of the SAR's deputies to the National People's Congress, two thirds of the members of the Legislative Council and the Chief Executive. No such prior consent is required for proposals for amendments which emanate from the Standing Committee or the State Council. However, the Basic Law does provide, as regards all
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