TNAG-1442-FCO40-1926-Constitutional-development-in-Hong-Kong-1986 — Page 96

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8. Article 67 (4) of the Chinese constitution provides for the NPC Standing Committee to interpret "statutes" of which the Basic Law is presumably one. However, given the JD provision quoted in para 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

to ensure that an interpretation of the Basic Law by the NPC Standing Committee, in accordance with Article 67(4), should be of a legislative, rather than a judicial nature, that is to say that

it should only take prospective effect.

This could be made clear,

for example, in a Basic Law provision. In consequence, the SAR's

courts would thereafter be

be bound by that interpretation since it

would have the force of an amendment to the Basic Law regardless of

the form it took.

9.

areas

In connection with the power of the SAR's courts in interpreting

the Basic Law, some people suggested that the SAR's courts should

have no

to interpret the Basic Law in

of respect

outside the SAR's autonomy. Such a suggestion presumably has regard primarily to the provision in Annex

Section I of the Joint

powers

Declaration:

I

10.

"Except for foreign and defence affairs which are the responsibilities of the CPG, the HK SAR shall be vested with executive, legislative and independent judicial powers, including that of final adjudication."

The situation is, however, likely to be more complex. In

exercising their

their judicial powers, the SAR's courts will need to decide cases in accordance with the laws of Hong Kong, 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

executive or by the

In such consequences of

legislative acts.

it may be necessary

for the court

whether to decide

executive

legislative act or

has strayed into foreign or defence matters, and thus infringed the Basic Law and acted ultra vires. such circumstances, if the SAR's courts are unable to interpret the relevant parts of the Basic Law (independently) the case could well

case

а

an SAR

In

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