TNAG-1439-FCO40-1923-Constitutional-development-in-Hong-Kong-1986 — Page 159

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PING SAND IN HONG KONG THAT HE PERSONALLY FELT THE BASIC LAW SHOULD

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BE SELF-SUFFICIENT' AND THAT THE SAR COURT'S SHOULD BE ABLE TO TAKE DECASHONS OF FINAL ADJUDICATION ON THE BASIS OF THE BASIC LAW #TSELF WITHOUT THERE BEING ANY NEED TO REFER TO THE CHINESE

CONSTITUTION.

13. THERE ARE VARIOUS WAYS IN WHICH THE QUESTION OF THE

SINTERPRETATION OF THE BASIC LAW COULD BE DEALT WITH. THE

FOLLOWING ARE THE MAIN OPTIONS WHICH HAVE BEEN SUGGESTED:

(A) MAKING A DISTINCTION BETWEEN LEGISLATIVE INTERPRETATION AND

JUDICIAL INTERPREATION - THIS HAS BEEN SUGGESTED BY THE GROUP OF HONG KONG LAWYERS (LED BY LEGISLATIVE COUNCILLORS MARTIN LEE,

QC AND PETER C. WONG) WHICH VISITED CHINA MN JUNE 1985. THIS

ENVISAGES A SYSTEM UNDER WHICH THE COURTS CONTINUE TO ENJOY THE

AUTHORMITY TO INTEREPRET LAWS (INCLUDING THE BASIC LAW) N JUDICIAL DECISIONS, WHILE THE LEGISLATURE (WHICH IN THE CASE OF THE

BASIC LAW MEANS THE NPC) RESERVES THE POWERS TO AMEND THE BASIC

LAW WHERE THE COURTS HAVE INTERPRETED IT IN A MANNER DIFFERENT

FROM THAT INTENDED BY THE LEGISLATURE. THIS IS GENERALLY THE SYSTEM

PRACTISED BY MOST WESTERN COUNTRIES WITH SIMILAR LEGAL SYSTEMS:

(B) A SPECIAL COMMITTEE WITH HONG KONG REPRESENTATIVES THIS DEA WAS FIRST CONCEIVED DURING THE NEGOTIATIONS. IT INVISAGED A SPECIAL

COMMITTEE COMPRISING TWO REPRESENTATIVES FROM THE HONG KONG

JUDICIARY AND THREE FROM THE NPC STANDING COMMITTEE TO

ADJUDICATE IN PEKING ON QUESTIONS OF LEGISLATIVE INTERPRETATIONS OF

THE BASIC LAW. THIS WOULD ALLOW THE SAR'S VIEWPOINTS TO BE HEARD

IN THE PROCESS:

(C) SHARMING THE AUTHORITY OF INTEREPRETATION TO ALLOW THE

YONG KONG COURTS TO INTERPRET THOSE ASPECTS OF THE BASIC LAW

WHICH DEAL WITH THE SAR'S INTERNAL AFFAIRS, WHILE RESERVING TO

THE NPC STANDING COMMITTEE THE AUTHORITY OF INTERPRETATION IN

RESPECT OF MATTERS AFFECTING THE INTERESTS OF THE CENTRAL

GOVERNMENT.

14. THERE SHOULD BE NO NEED TO ARGUE ON THE AUTHORITY FOR

INTERPRETING THE BASIC LAW OR ON THE DISTINCTION BETWEEN LEGISLATIVE

AND JUDICIAL INTERPRETATION. THE JOINT DECLARATION PROVIDES THAT THE

BASIC LAW WILL BE PART OF THE LAWS OF THE HONG KONG SAR (SECTION H

OF ANNEX (P) AND THAT JUDICIAL POWER IN THE HONG KONG SAR WILL BE

VESTED IN THE SAR'S COURTS (SECTION IN OF ANNEX H). IT FOLLOWS

THAT THE SAR'S COURTS WILL HAVE THE AUTHORITY TO INTERPRET AND

APPLY THE BASIC LAW, AS PART OF THE LAWS OF HONG KONG, IN THE DAY- TO-DAY ADMINISTRATION OF JUSTICE IN THE HONG KONG SAR.

15. THERE IS, HOWEVER, SCOPE FOR CONFLICT IF THE CHINESE GOVERNMENT: /A)

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