TNAG-1843-FCO40-2618-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1989 — Page 41

WOZAPE (2)

(e) BASIC LAW: INDEPENDENCE OF JUDICIARY

The second draft of the Basic Law makes specific provisions in this area. Articles 79-92 set out in detail the functions, structure and power of the judiciary. Two Articles are particularly

relevant:

Article 81 provides that "the power of final adjudication is vested in the Court of Final Appeal of the SAR".

Article 84 provides that "the Courts of the SAR shall exercise judicial power independently and free from any interference".

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These and other provisions in the section of the Basic Law on the judicial system follow closely the equivalent provisions of the

Joint Declaration.

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Article 157: consistent with provisions on independent judiciary?

Articles 81 and 84 make clear that there will be independent judicial power, including that of final adjudication, in Hong Kong. But we must remember that Hong Kong will after 1997 be a Special Administrative Region of China, not an independent territory. provision for resolving disputes on the interpretation of the Basic Law must be found. It would not be reasonable to expect the sovereign authority to exclude itself entirely from such a process.

Some

But the revised draft has gone a considerable way in conferring the judicial power of interpretation on SAR organs. Some people feared the provisions in the first draft (Article 169) would have slowed down legal proceedings in the Hong Kong courts and hampered the efficient operations of the judiciary. Under the revised draft, the Hong Kong courts are to be authorised to interpret on their own those provisions of the Basic Law falling within the range of the SAR's autonomy. The SAR courts will also be able to interpret other provisions. But they may need to refer to the Standing Committee of the National People's Congress if in their view such an interpretation is required for a final judgement to be made.