TNAG-1602-FCO40-2198-Future-of-Hong-Kong-Basic-Law-1987 — Page 135

4.

4.1

publications

textbooks.

and

This interpretation has no legal binding effect.

The power of interpretation of the Basic Law

kind

of

The Basic Law will be legislation enacted by the NPC under powers conferred upon it by Article 31 of the PRC Constitution which stipulates that "The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions." The Basic Law thus will become a constitutional instrument governing Hong Kong. Furthermore, Hong Kong and the PRC exercise very different legal systems as delineated in Sections 2 and 3 above. The following points arise:

The Jurisdiction of the courts of Hong Kong in respect of the Basic Law.

Views have been

been expressed that in keeping with the Joint Declaration and in particular, in preserving the laws presently in force in Hong Kong, the courts of Hong Kong will of necessity have to interpret all laws in force in Hong Kong including the Basic Law. Under the common law, no interpretation other than judicial interpretation by a court of record would be recognised by the courts.

The power of

following way:

interpretation

would operate in the

i.

It has been

litigation a

interpretation

proposed

that if in the course of

the Basic

dispute arises as to whether the

of

Law

involves

a

determination as to whether it is a matter of defence or foreign affairs, the question may be referred either by direction of the court or upon application of one of the parties to a constitutional court composed partially of representatives of NPC and partially of Hong Kong judges. Again, in keeping with the existing law, the courts would be empowered to reach their Own conclusion in cases where they

they felt able but their decisions would be subject to review by the constitutional court

an application by one

of the parties. A view has also been expressed that the constitutional court referred to above should be a committee rather than a court. A committee could potentially exercise jurisdiction of its Own motion

on

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