TNAG-1442-FCO40-1926-Constitutional-development-in-Hong-Kong-1986 — Page 27

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6.

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The Joint Declaration provides for the SAR to enjoy a high degree of autonomy. It is important for the success of the "one-country, two-systems" concept, and thus confidence in the future of Hong Kong, that the SAR's high degree of autonomy is not seen to be eroded by the way in which statutes of the People's Republic of China are applied in

in the Hong Kong SAR. We have given some thought to the matter and have a few ideas. It is clear for instance that the law of

Chinese nationality is exclusively within the jurisdiction of the People's Republic of China. It is possible that

that there are other areas of law to which similar considerations may apply. It would, therefore, be valuable to have an early understanding of how the Chinese side see this problem and, having regard to the provisions of the Joint Declaration quoted in paragraph 2 above, what ideas the Chinese side have with regard to such laws.

Interpretation of the Basic Law

C. 7.

Another legal issue that has been raised is the question of power of interpretation of the Basic Law. The Joint Declaration does not provide directly for this, but it does confer exclusive judicial power in the SAR on the courts of the SAR. In addition to the provisions set out in paragraph 2 above, Annex

Section III of the Joint Declaration provides that:

8.

I

"Judicial power in the Hong Kong SAR shall be vested in the courts of the Hong Kong SAR. The courts

exercise judicial power

shall

independently and free from

·

The courts shall decide

any interference... cases in accordance

The

with the laws of the Hong Kong SAR... power of final judgment of the Hong Kong SAR shall be vested in the court of final appeal in the Hong Kong SAR.

Ħ

Article 67 (4) of the Constitution of the People's Republic of China provides for the Standing Committee of the National People's Congress to interpret "statutes" of which the Basic Law is presumably one. However, given the Joint Declaration provision quoted in paragraph 7 7 above, it will be necessary to ensure that the judicial authority of the SAR's courts is fully preserved. For this reason, it would be important to ensure that an interpretation of the Basic Law by the Standing Committee of the National People's Congress, in accordance with Article 67(4), should be of a legislative, rather than a judicial nature, that is to say that it should take only prospective, not retrospective effect. This could be made clear, for example, in a Basic Law provision. In consequence, the SAR's courts would thereafter be bound by that interpretation since it would have the force of an amendment to the Basic Law regardless of the form it took.

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