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As a matter of law, Article 19 of the Basic Law will operate as from 1 July 1997. Article 19 provides that the Courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The Hong Kong Court of Final Appeal Ordinance will come into operation on the same day and cannot, of course, override the Basic Law. So as a matter of law, the jurisdiction of the Hong Kong Courts will be subject to Article 19. The recognition of this inescapable fact is not a concession, and nor does it restrict the jurisdiction of the courts further than is provided in the Basic Law.
Before I leave the jurisdiction of the Court of Final Appeal, I should point out that the Chinese side have agreed that there is no need for any further legislative or other provisions in relation to the power of the courts to enquire into the constitutionality of laws or to provide for post- verdict remedial mechanisms. All members of this Council will, I am sure, agree that this is an important point, as it will ensure that the jurisdiction of Hong Kong's Court of Final Appeal will, subject to the provisions of the Basic Law, be the same as that of the Judicial Committee of the Privy Council.
Setting up the Court on 1 July 1997
I now turn to the commencement provision in the Bill. It has all along been our objective to introduce the Court of Final Appeal Bill into this Council with the agreement of the Chinese side, because only that would guarantee that the Court of Final Appeal will endure after 1 July 1997. We have now agreed with the Chinese side that the Court of Final Appeal should be established on 1 July 1997. It is no secret that we would have preferred to establish the Court of Final Appeal by July 1996 to give it about a year to build up experience before the transfer of sovereignty. But we would have had to pay a very high price to achieve that. By introducing the Court of Final Appeal Bill into this Council without Chinese agreement and with no guarantee that any Court set up as a result would survive 1997 would have meant a loss of public and international confidence in the form of the Court of Final Appeal after 30 June 1997.
Thus, as stated in the agreement, the Court of Final Appeal will be established on 1 July 1997 in accordance with the Court of Final Appeal Bill after it has been passed by this Council. Clause 1(2) of the Bill makes it clear that that will be the case. The Court of Final Appeal Ordinance will come into operation on the day after 30 June 1997, that is 1 July, and it will be amended to the extent necessary to ensure that it conforms with the Basic Law.