-
· 17 -
The provision for this legislation to come into operation on 1 July 1997 has given rise to some legal controversy. Some have argued that it is unconstitutional because of Article 18 of the Basic Law. I wish to reject that suggestion in no uncertain terms. Article 18 of the Basic Law provides that the laws in force in the Hong Kong Special Administrative Region shall include "the laws previously in force in Hong Kong as provided for in Article 8" of the Basic Law. Some have argued that as the legislation will not be in operation before 1 July 1997 it will not be a "law previously in force" and will not therefore be a law in force in the Hong Kong Special Administrative Region.
Mr President, this argument overlooks two vital points. First, the Chinese text of Article 18 does not refer to "laws previously in force in Hong Kong", but (in effect) to "laws which Hong Kong originally had." The Court of Final Appeal Ordinance would clearly be such a law. Secondly, the English text of Article 18 refers to laws previously in force in Hong Kong "as provided for in Article 8". Article 8, in referring to "the laws previously in force in Hong Kong" says (and I quote) "that is, the common law, rules of equity, ordinances, subordinate legislation and customary law". Once the Court of Final Appeal Bill is enacted it will clearly be an Ordinance, and will therefore be a law previously in force in Hong Kong within the meaning of Article 8, even though it is not brought into operation before 1 July 1997. There is therefore no merit whatsoever in the argument that this legislation cannot be brought into operation on 1 July 1997.
The commencement provision, combined with other arrangements I shall refer to shortly, will ensure that there is no judicial vacuum as a result of the establishment of the Court of Final Appeal. Nobody will be deprived of his or her right of appeal because of the inevitable and short gap between the ending of appeals to the Privy Council and the establishment of the Court. As I mentioned earlier, this has been one of our key objectives.
According to the agreement reached in the Joint Liaison Group last week, the preparatory work for the establishment of the court will be done before the transfer of sovereignty. On 1 July 1997, therefore, the judges can be appointed, the rules of court made, and the court can commence work immediately. With regard to appeals lodged before the transfer of sovereignty, the Judicial Committee of the Privy Council will keep its jurisdiction to hear appeals from Hong Kong until 30 June 1997. We have received the British Government's assurance that the Privy Council will continue to retain its jurisdiction over cases from Hong Kong up to 30 June 1997, and will give priority to Hong Kong appeals in the months immediately prior to July of that year.