TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 200

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HONG KONG LEGISLATIVE COUNCIL 14 July 1988

1919

enjoy executive, legislative and independent judicial powers, including that of final adjudication. This is contained in the preamble of the draft Basic Law. But judging from other articles in the Basic Law, it is doubtful whether the Hong Kong SAR will really enjoy these four important powers in their entirety. Firstly, on executive power. Article 15 of the draft Basic Law stipulates that the HKSAR, in accordance with relevant provisions of the Basic Law, shall on its own manage public finance, monetary matters, economy and other matters. And if we read other articles we will discover that we have very detailed provisions concerning these other executive powers. Take the example of public finance. Chapter V gives us some principles. For example, we shall follow the principle of determining expenditure according to revenues when drawing up a budget and that the rate of increase of the budgetary revenues and expenditure of the Hong Kong SAR shall not exceed that of the gross domestic product over a number of fiscal years. In other words, the Hong Kong SAR in forming certain policies will be subject to some degree of limitations imposed by these detailed policy articles. This seems to contradict Annex I of the Joint Declaration, which mentions that the Special Administrative Region has the power to enact its own laws.

Secondly, on legislative power. Article 16 says that the National People's Congress Standing Committee has the power of vetting the legislation passed in Hong Kong. At least it has the power to examine laws enacted by the Hong Kong SAR to see whether it violates the constitution. And the NPC also has the power to return for reconsideration and revoke laws enacted by Hong Kong. Although Britain also enjoys the power of vetoing the laws enacted by Hong Kong present, we must not forget that Hong Kong and the United Kingdom belong to the same legal entity and the relationship between the two is one between a sovereign state and a colony. Hong Kong and China, on the other hand, belong to two totally different legal systems. Since the Hong Kong SAR will enjoy a high degree of autonomy, logically the Central Government should not enjoy legislative vetting power.

In addition, article 17 says that there are also laws which will be enacted by the National People's Congress that will apply to Hong Kong. These will be outside the scope of defence and foreign affairs. Actually, these are laws which given expression to national unity and territorial integrity. Such arrangements will certainly weaken the integrity of Hong Kong SAR's legislative powers.

Thirdly, on judicial power article 18 stipulates that courts of the Hong Kong Special Administrative Region shall have no jurisdiction over cases relating to defence and foreign affairs, which are the responsibility of the Central People's Government, and cases relating to executive acts of the Central People's Government. It is also said in article 18 that the courts of the Hong Kong SAR shall seek the advice of the Chief Executive whenever questions concerning defence, foreign affairs of the executive acts of the Central People's Government arise in any legal proceedings. A statement issued by the Chief Executive regarding these questions shall be binding on the courts. So this has certainly