CONFIDENTIAL
Need for authentic English text of Basic Law
There has been much comment in Hong Kong on the need for an authentic English text of the Basic Law. Focus in particular on need for Hong Kong SAR courts, operating on the common law system, to have authentic English text to be able to function properly. See some force in these arguments. Sure these views will emerge during public consultation process.
Judicial system
On maintenance of existing judicial/legal system, draft BL clearly provides for continuation of present, common law system (Articles 8 and 17), and for an independent judiciary (Articles 84-94). Power of final judgement also vested in the Hong Kong courts (Article 82). Some criticisms, particularly by lawyers on:
NPC's power to determine validity of laws enacted by the SAR
legislature. It is in accordance with the Joint Declaration to
regard laws which are contrary to the Basic Law as invalid.
Some scheme is needed to determine what laws are valid.
Hong Kong courts have this power not ruled out by Basic Law. Draft Basic Law also provides for the NPC to have some say, since the NPC will have enacted the Basic Law. There is room for discussion about precise details.
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Application of laws enacted by the NPC (Article 17), sometimes referred to as "nation-wide statutes". Must remember that
although HKSAR has high degree of autonomy, matters relating to defence and foreign affairs are responsibility of CPG. Naturally Chinese laws in these areas must somehow be given effect in the SAR (eg Chinese Nationality Law). The mechanics envisaged for SAR law to give effect to these "nation-wide
statutes".
Restrictions on jurisdication of SAR courts (Article 18). There are some matters which HK courts today cannot question, eg whether a foreign state should be recognised. Essentially these are matters within the prerogative of the sovereign power
CONFIDENTIAL
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