XN000022-1988-07-14 — Page 10

THURSDAY, JULY 14, 1988

9

ARTICLES ON JUDICIARY, INTERPRETATION SHOULD BE AMENDED

AND

ARTICLE 18 OF THE DRAFT BASIC LAW CONCERNING THE JUDICIARY ARTICLE 169 CONCERNING INTERPRETATION OF THE BASIC LAW SHOULD BE SUBSTANTIALLY AMENDED, THE HON MARTIN LEE SAID IN THE LEGISLATIVE COUNCIL TODAY (THURSDAY).

SPEAKING DURING THE SECOND DAY OF THE MOTION DEBATE ON THE DRAFT BASIC LAW, MR LEE SAID THAT A PROVISION IN ARTICLE 18 WAS UNACCEPTABLE.

NO

THIS WAS THE PROVISION THAT "COURTS OF THE HKSAR SHALL HAVE JURISDICTION OVER CASES RELATING TO DEFENCE AND FOREIGN AFFAIRS WHICH ARE THE RESPONSIBILITY OF THE CENTRAL PEOPLE'S GOVERNMENT AND CASES RELATING TO THE EXECUTIVE ACTS OF THE CENTRAL PEOPLE'S GOVERNMENT".

THE FORMULATION IN ARTICLE 18 WAS UNACCEPTABLE BECAUSE IT CAST

A WIDER NET OF EXCLUSION THAN UNDER THE PRESENT SYSTEM.

HE SAID THAT ALTHOUGH SOME OF THE MATTERS WHICH WERE NOT JUSTICIABLE IN THE COURTS DID FALL WITHIN THE DESCRIPTION OF DEFENCE AND FOREIGN AFFAIRS, NOT EVERY CASE RELATING TO DEFENCE OR FOREIGN AFFAIRS WAS OUTSIDE THE JURISDICTION OF THE HONG KONG COURTS TODAY.

"IN OTHER WORDS, THE LIMITS OF JURISDICTION SOUGHT то BE IMPOSED ON THE COURTS OF THE HKSAR BY THE PRESENT ARTICLE REPRESENT A DEPARTURE FROM THE PRESENT SITUATION, HE SAID.

"AND THIS IS CONTRARY TO THE COMMON OBJECTIVE OF MEMBERS OF THE BLDC WHICH HAS ALWAYS BEEN THAT WHAT THE COURTS CAN TRY TODAY, THE COURTS OF THE HKSAR CAN ALSO TRY AFTER 1997."

AS TO THE EXCLUSION FROM THE JURISDICTION OF THE HKSAR COURTS "CASES RELATING TO THE EXECUTIVE ACTS OF THE CENTRAL PEOPLE'S GOVERNMENT" HE SAID THE RATIONALE BEHIND THIS STEMMED FROM THE FACT THAT UNDER THE CROWN PROCEEDINGS ORDINANCE, ALTHOUGH ANY PERSON WHO HAD SUFFERED DAMAGE AS A RESULT OF A CIVIL WRONG DONE BY THE HONG KONG GOVERNMENT, MIGHT BRING AN ACTION IN HONG KONG AGAINST THE HONG KONG GOVERNMENT, NO SUCH PROCEEDINGS MIGHT BE BROUGHT IN HONG KONG AGAINST THE BRITISH GOVERNMENT IN RESPECT OF ANY ACT, NEGLECT OR DEFAULT OF ANY OF ITS OFFICERS OR AGENTS.

AND IN SUCH CASES, THE AGGRIEVED PARTY WOULD HAVE TO INSTITUTE HIS ACTION AGAINST THE BRITISH GOVERNMENT IN AN ENGLISH COURT.

PROCEDURES

HE SAID: "BUT THE ANALOGY IS NOT APPOSITE BECAUSE THE ENGLISH LEGAL SYSTEM IS ALMOST THE SAME AS OURS, AND THEIR ARE ALSO SIMILAR.

LEGAL

"SO EVEN

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