TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 158

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—Job No. 166880

HANSARD JUL14:02

1876

HONG KONG LEGISLATIVE COUNCIL 14 July 1988

into four levels; those enacted by the Legislative Council, Chief Execu- tive, the State Council and the Standing Committee of the National People's Congress-in ascending order of legislative power. This may result in the situation that laws passed by Hong Kong's own Legislative Council could be repealed or Hong Kong could be coerced into enforcing decrees it might be unwilling to accept.

Articles 16 and 17 provide that Hong Kong's legislature will, to a large extent, be at the command of the Central People's Government. How in that case can a high degree of autonomy be achieved? What safeguards can there be of civil rights and freedoms? These are the basic questions arising from the Basic Law.

As for Hong Kong's judicial power and adjudication, article 18 provides that the courts of Hong Kong `shall have no jurisdiction over cases relating to the executive acts of the Central People's Government or that the courts of Hong Kong will be bound by executive statements in the course of their proceedings.' Obviously, the restrictions on judicial independence and the executive inter- vention in the judicial process run contrary to the terms of the Joint Declaration. The most serious constraints and interference of Hong Kong's legal system may be seen in articles 169 and 170. These relate to the power of interpretation of and to the power of amending the Basic Law. The draft proposes that the power of interpretation of the Basic Law rests with the Standing Committee of the National People's Congress but allows for interpretation by the courts of Hong Kong. The power of making amendment: belongs to the National People's Congress and Hong Kong's Legislative Council gets only one third of the power to propose amendments.

Section 3 of Annex 1 of the Joint Declaration clearly states-and I quote: "That the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the vesting in the courts of the Hong Kong Special Administration Region of the power of final adjudication.' The current judicial system is such that the judge in the course of the proceedings holds full powers of interpretation on points of law and his interpretation carries absolute legal effect.

Sir, Hong Kong is an internationally renowned territory where the rule of law prevails. The rule of law is paramount in the maintenance of freedom, prosperity and stability. The spirit of the Joint Declaration and relevant provisions clearly indicate the recognition of Hong Kong's excellent system of the rule of law on the part of China and the United Kingdom.

The basic structure of the rule of law comprising the legislature, the Judiciary and adjudication is now under serious threat from the draft Basic Law. The relevant authorities should give careful consideration to making appropriate amendments to the draft.