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9.
In connection with the power of the SAR's courts in interpreting the Basic Law, some people have suggested that the SAR's courts should have no powers to interpret the Basic Law in respect of areas outside the SAR'S autonomy. Such a suggestion presumably has regard primarily to the provision
the provision in Annex I, Section I of the Joint Declaration: "Except for foreign and defence affairs which are the responsibilities of the Central People's Government, the Hong Kong SAR shall be vested with executive, legislative and independent judicial powers, including that of final adjudication.
The situation
is,
10.
however, likely to be more complex. In exercising their judicial powers, the SAR's courts will need to decide cases in accordance with
with the laws of the Hong Kong SAR, which are the Basic Law, and the laws previously in force and laws enacted by the SAR legislature. An issue relating to the Basic Law could arise in the course of a civil dispute between two parties which are affected by the consequences of executive or legislative acts. In such a case, it may be necessary for the court to decide whether an SAR executive or legislative act has strayed into foreign or defence matters, and thus infringed the Basic Law and been ultra vires. In such circumstances, if the SAR'S courts are unable to interpret the relevant parts of the Basic Law (independently) the case could well be aborted. This would be undesirable and would contravene the Joint Declaration provision quoted in paragraph 7 above.
11.
That of course is not to say that the SAR courts could enquire into the substance of decisions of the Central People's Government concerning foreign and defence affairs: such matters are reserved for the Central People's Government. Thus, if the SAR's courts needed to establish, for example, whether a state was recognised by China, or whether China was in a state of war with another state, the courts would be bound by (and would not be able to inquire further into) an authoritative
authoritative ruling of the Central People's Government on the matter.
Thus, according the SAR's courts the ability to interpret those parts of the Basic Law dealing with foreign and defence affairs would not infringe China's sovereignty or the jurisdiction of the Central People's Government on foreign and defence affairs.
D.
12.
Individual Rights and Freedoms
A further area which is of fundamental importance to the maintenance of confidence in Hong Kong is the preservation of individual rights and freedoms in the Joint Declaration.
as set out
G.F. 316
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