T
:
HONG KONG LEGISLATIVE COUNCIL
- 14 July 1988
1891
no jurisdiction to enquire into the matter, as it is ‘an executive act of the CPG'. This simple illustration shows that unless article 18 is amended, all the articles in Chapter III of the draft Basic Law pertaining to civil liberties may be rendered nugatory.
In the circumstances, I am glad that Members of the Panel have reached a consensus on this article. We are unanimous in accepting the first paragraph of this article. We also find the second paragraph acceptable on its won although we feel that this paragraph might be contradicted by the third and fourth paragraphs. We find the term 'the executive acts of the CPG' to be vague and would like it to be clearly defined; and we also agree that the present system whereby the citizens of Hong Kong can take the Hong Kong Government to the courts should be retained. And finally we are of the view that it should be up to the courts to decide whether a particular act is or is not an act of state; and that in relation to facts of state, the court should be given a discretion to ask for a certificate from the executive authorities only when in doubt, and not when the matter is clear.
I believe that these views will be taken care of by amending article 18 as follows:
"The Hong Kong Special Administrative Region is vested with independent judicial power, including that of final adjudication.
The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions of their jurisdiction imposed by Hong Kong's previous legal system and principles shall be maintained.
The courts of Hong Kong Special Administrative Region shall seek the advice of the Chief Executive in accordance with the principles and legal precedents of the common law when questions concerning foreign affairs and defence arise in any legal proceedings. A statement issued by the Chief Executive regarding such questions shall be binding on the courts.
Before issuing such a statement, the Chief Executive shall obtain a certificate from the Standing Committee of the National People's Congress or the State Council.
Regulations regarding the handling by courts of the Hong Kong Special Administrative Region of cases relating to organisations, organs of state power of the People's Republic of China (including those mentioned in articles 13 and 21 of Chapter II) or their personnel, and regulations concerning compensations by organisations, organs of state power and the personnel concerned, shall be stipulated by the law of the Region'.
Article 169
Members of the panel accept the first two paragraphs of the article as well as the first sentence in the third paragraph, but do not agree with the rest of that
No comments yet.
Private notes are available after approval.