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MDHIAN 8747
SAR.
5. THE CPG'S REMEDY SHOULD INSTEAD LIE IN SEEKING AN AMENDMENT TO THE BL. (ART. 170), OR ALTERNATIVELY IN A LEGISLATIVE INTERPREATION OF THE RELEVANT BL ARTICLE OUTSIDE THE CONTEXT OF A SPECIFIC CASE. SUCH AMENDMENTS OR INTERPRETATIONS WOULD BE BINDING, BUT THEY WOULD NOT BE RETROSPECTIVE AND WOULD NOT DAMAGE THE INTEGRITY OF
THE JUDICIAL PROCESS.
6. THERE MAY WELL BE CASES, OTHER THAN IN A JUDICIAL CONTEXT, WHERE A DECISION IS REQUIRED ON A QUESTION OF DELINEATION OF POWER BETWEEN THE SARG AND THE CPG. THE DRAFT BL AS CURRENTLY DRAFTED MAY NOT HAVE DEALT WITH THIS ASPECT ADEQUATELY. WE ENVISAGE THAT SUCH CONFLICTS COULD BE RESOLVED BY A MEDIATING BODY, E.G. THE PRPOSED BASIC LAW COMMITTEE, AND IT IS FOR CONSIDERATION THAT EXPRESS PROVISION BE MADE IN THE BL FOR A POLITICAL MECHANISM TO RESOLVE SUCH DISPUTES. IT IS AT THIS POSSIBILITY THAT WE UNDERSTAND THE LAST PARAGRAPH OF YOUR MEMORANDUM TO SHAO IS DIRECTED.
ON SECOND TUR
ON A(I) (I) AND A (II) (I)
·
7. FOR REASONS SET OUT IN PARAS 3-6 ABOVE, WE SUGGEST THAT THE LAST PHRASE (REFERRING TO EXCEPTIONS) IN EACH OF THESE TWO ELEMENTS BE DELETED.
ON A(I) (IV)
8. THE PUBLIC WILL FIND IT REASSURING IF THE PROPOSAL IN THIS ELEMENT IS ACCEPTED BY THE CHINESE. BUT WE ARE PREPARED TO ACCEPT THAT THE NPC STANDING COMMITTEE MAY INTERPRET THE ENTIRE BL, PROVIDED THAT ELEMENT A(I) (III) IS SECURED.
ON ACIII)
.
9 IT IS IMPORTANT THAT ACCRUED RIGHTS SHOULD NOT BE AFFECTED
RETROSPECTIVELY BY A NEW INTERPRETATION GIVEN BY THE NPC
STANDING COMMITTEE. WE THEREFORE SUGGEST THAT THIS ITEM BE REVISED AS FOLLOWS: ''NOT RETROACTIVE AS REGARDS JUDGMENTS GIVEN, PENDING CASES OR ACCRUED RIGHTS'
ON B(I)
•
10. THE POINT WE WOULD WISH TO EMPHASISE IN MAKING A REFERENCE TO THE EXISTING JUDICIAL SYSTEM IS THAT AT PRESENT, A HK COURT MAY INTERPRET ALL THE LAWS RELEVANT TO THE CASE BEFORE IT. THE
LIMITATIONS REFERRED TO IN ART. 18 ARE IN RESPECT OF THE COURTS'
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