Job No. 166880
HANSARD//JUL13:06
1836
HONG KONG LEGISLATIVE COUNCIL 13 July 1988
final adjudication', but note that other provisions in the draft Basic Law, notably articles 16, 17 and 18 in Chapter II and article 169 in Chapter IX could be problematic in that they might be construed as derogating from the said provision in article 2 which is consistent with the Joint Declaration. These articles were examined by Members first separately then conjointly. Members accept that the Central People's Government enjoys executive, legislative and judicial powers over the Hong Kong Special Administrative Region including the interpretation of the Basic Law, but that such powers ought to be strictly consistent with the terms of the Joint Declaration. On article 17 which has to do with legislative power, Members welcome the provision in paragraph 1 which lists out the three sources and the only three sources, of law for the region, that is the Basic Law, the laws previously in force in Hong Kong, and the laws enacted by the legislature of the Special Administrative Region. Members are content that defence and foreign affairs fall outside the region's areas of powers, but are of the view that such laws, enacted by the National People's Congress or its Standing Committee, if require application locally, should not be decreed by the State Council for local application or be promulgated locally on the directives of the State Council but should be legislated for locally on such directives. Members fear that decrees or promulgation might constitute a fourth source of
· law, thus deviating from the Joint Declaration. Members are wary of the phrase 'other laws which give expression to national unity and territorial integrity' and submit for the same reason i.e. a possible fourth source of law, that although this phrase is qualified by the phrase 'and which, in accordance with the provisions of this law, are outside the limits of the high degree of autonomy', and that although such laws do exist, such laws ought to be incorporated into the Basic Law probably as an appendix.
On article 18, which has to do with judicial power, Members welcome paragraphs and 2 which vest the region with independent judicial power including that the final adjudication in that courts in the region shall have jurisdiction over all cases in the region shall have jurisdiction over all cases in the region except as restricted by Hong Kong's previous system. Members find the concept of “executive acts of the Central People's Government' to be novel but ambiguous and are of the view that the existing system whereby the people could take the Government both local (Hong Kong) and central (Britain now, but China after 1997) including defense and foreign affairs, should be maintained. Members consider that the existing system of leaving it to the courts to determine in the trial whether or not “acts of state' or 'facts of state' are involved and to take appropriate action, is sufficient for the purpose.
On articles 16 and 169 which relate to the power of interpretation of the Basic Law, Members appreciate that under article 67 of the constitution of the People's Republic of China, 'to interpret statutes', and the Basic Law is a statute, is one of the functions and powers of the Standing Committee of the National People's Congress. I personally do not know whether this should be classified as a legislative power or a judicial power as this mechanism of
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