TNAG-1602-FCO40-2198-Future-of-Hong-Kong-Basic-Law-1987 — Page 137

4.2

(v)

(i)

(ii)

and it was not realistic to have SAR courts interpret a law enacted and promulgated by the NPC.

It has been pointed out however

however that unless

that unless the Hong Kong courts have the power to interpret the Basic Law, the power of final adjudication will not lie with the Hong Kong SAR as stipulated in the Joint Declaration.

Should there be legislative interpretation of the

Basic Law?

Since legislative interpretation is a concept alien to the common law which by the Joint Declaration will be maintained, the question of interpretation by the legislature is something which is undesirable.

It has been suggested as follows:-

The Standing Committee of the NPC has legislative interpretation power on the Basic Law, whereas the SAR courts in dealing with cases

can have judicial interpretation power to

interpret each and every

clause in the Basic Law.

In respect of interpretation of clauses in the Basic Law that fall within the jurisdiction of the SAR, the Standing Commitee of the NPC should delegate full power to the SAR courts without reservation.

are be

In cases where clauses in the Basic Law that beyond the jurisdiction of the SAR fall to interpreted, the Standing Committee of the NPC can exercise its interpretation power u pon the matter being referred to it by а special committee which

and

Central

comprises both SAR

Government. Interpretation is to be made by the Standing Committee through a special committee which comprises both SAR and Central Government representatives (SAR members should be the majority). Interpretations made by the Standing Committee will not have retrospective or retroactive effect and will not affect acquired or accrued rights or cases decided, and it will become legally binding on future cases.

The following other opinions have also been expressed:

Opinion A

It was feared that any legislative interpretation by the NPC will affect final adjudication of the SAR

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