XN000022-1988-07-14 — Page 11

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THURSDAY, JULY 14, 1988

"SO EVEN IF AN AGGRIEVED CITIZEN IN HONG KONG HAS TO BRING HIS ACTION IN AN ENGLISH COURT, HE WILL NOT SUFFER ANY SIGNIFICANT DISADVANTAGE APART FROM HAVING TO BRING HIS ACTION IN ENGLAND."

BUT UNDER ARTICLE 18, HE NOTED, IF THE CENTRAL PEOPLE'S GOVERNMENT (CPG) HAD DONE A CIVIL WRONG IN THE HKSAR AND IF SUCH A WRONG COULD NOT BE REDRESSED IN THE COURT OF THE HKSAR UNDER THE LAWS WHICH APPLIED TO THE HKSAR, THEN THE AGGRIEVED PARTY WOULD SUFFER CERTAIN DISADVANTAGES.

MR LEE SAID: "IT IS NOT EVEN CLEAR WHETHER RESIDENT CAN BRING PROCEEDINGS AGAINST THE CPG IN SUPREME COURT IN MAINLAND CHINA.

A HONG KONG THE PEOPLE'S

"EVEN IF HE CAN, IT IS DOUBTFUL WHETHER HE CAN ENFORCE LEGAL RIGHTS WHICH ARE ONLY RECOGNISED IN THE HKSAR AND NOT IN MAINLAND CHINA.

**

HE GAVE AN ILLUSTRATION TO SHOW THAT UNLESS ARTICLE 18 WAS AMENDED, ALL THE ARTICLES IN CHAPTER 3 OF THE DRAFT BASIC LAW PERTAINING TO CIVIL LIBERTIES MIGHT BE RENDERED NUGATORY.

HE SAID: "A PERSON IS ARRESTED IN THE HKSAR ON BEHALF OF THE CPG ON THE GROUND THAT HE IS SUSPECTED TO BE A SPY.

"HIS WIFE GOES TO A LAWYER WHO INSTITUTES AN ACTION HIGH COURT FOR A WRIT OF HABEAS CORPUS SO THAT HE COULD BE BEFORE THE COURT AND DEALT WITH ACCORDING TO LAW.

IN

THE BROUGHT

"BUT UNDER ARTICLE 18, THE COURT WILL HAVE NO JURISDICTION ENQUIRE INTO THE MATTER, AS IT IS AN EXECUTIVE ACT OF THE CPG."

ΤΟ

MR LEE SAID MEMBERS OF THE OMELCO CONSTITUTIONAL DEVELOPMENT PANEL WERE OF THE VIEW THAT IT SHOULD BE UP TO THE COURTS TO DECIDE WHETHER A PARTICULAR ACT WAS OR WAS NOT AN ACT OF STATE; AND THAT IN RELATION TO FACTS OF STATE, THE COURT SHOULD BE GIVEN A DISCRETION ΤΟ ASK FOR A CERTIFICATE FROM THE EXECUTIVE AUTHORITIES ONLY WHEN IN DOUBT, AND NOT WHEN THE MATTER WAS CLEAR.

HOWEVER, HE SAID THESE VIEWS COULD BE TAKEN CARE OF BY AMENDING SECTION 18 AS FOLLOWS:

'THE HONG KONG SPECIAL ADMINISTRATIVE REGION IS VESTED WITH INDEPENDENT JUDICIAL POWER, INCLUDING THAT OF FINAL ADJUDICATION.

'THE COURTS OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION SHALL HAVE JURISDICTION OVER ALL CASES IN THE REGION EXCEPT THAT THE RESTRICTIONS OF THEIR JURISDICTION IMPOSED BY HONG KONG'S PREVIOUS LEGAL SYSTEM AND PRINCIPLES SHALL BE MAINTAINED.

/"THE COURTS