XN000022-1995-07-26 — Page 18

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There are three proposed amendments: firstly, the Hon Martin Lee proposes to delete "such as defence and foreign affairs" after the reference to "acts of state"; and secondly to give the court a discretion, rather than a duty, to obtain a certificate from the Governor in respect of certain facts. The Hon K K Fung's proposed amendment would provide that acts of state shall be construed according to common law principles. I can well understand Hon K K Fung's sentiments, but have to point out that the meaning of "acts of state" in clause 4 must be consistent with the meaning of that expression in Article 19 of the Basic Law; that depends on the correct interpretation of the Basic Law. No definition of the expression in the Bill can tie down the meaning of the Basic Law. That said, I would note that it can be argued as others have done, as long ago as 1988, that Article 19 is consistent with the common law and that Articles 8 and 84 of the Basic Law provide for the maintenance of common law principles after 1 July 1997. However well-intentioned the amendments in respect of "acts of state" may be, it is clear that as a matter of law they cannot override Article 19 of the Basic Law and I will oppose them at Committee Stage.

Some members of this Council have asked why we should bother to include clause 4 in the Bill in the first place. The answer, of course, is that this was required by the recent JLG agreement. That agreement contains a package of measures that are binding on the British and Chinese Governments. The Administration cannot adopt some parts of it and reject others. The inclusion of clause 4 makes no difference to the court's jurisdiction in 1997, but it ensures that the JLG agreement can be implemented. The proposed amendments of clause 4 would achieve nothing in terms of the court's jurisdiction, but they would breach the agreement and destroy the only guarantee we have of a smooth transition in respect of our final appeal court.

Some members of this Council have sought to attack clause 4 of the Bill by arguing that the Standing Committee of the National People's Congress will, in certain situations, be able to decide what is or is not an act of state. Article 158 of the Basic Law does indeed give the Standing Committee a role in interpreting the Basic Law. But I remind Members that we are not debating the Basic law, we are debating the Court of Final Appeal Bill. So arguments about Article 158 are another red herring. Neither the JLG agreement nor the Court of Final Appeal Bill touches upon the interpretation of the Basic Law and, in any event, they could not have overridden Article 158. It is therefore quite misleading to criticise the agreement or the Bill for something they did not, and could not, deal with. As the Dean of the Law Faculty at the University of Hong Kong, distinguished constitutional lawyer, Professor Wesley- Smith, recently said, when referring to the power of the Standing Committee to interpret the Basic Law, "That of course is in the Basic Law. Whatever is in the Bill doesn't make any difference to that."