Background
Article 157
CONFIDENTIAL
B
4. When the Secretary of State gave evidence to the Committee on 22 March, he was questioned in some detail on Article 157 of the Basic
Law.
The issue also came up briefly during Mr McLaren's informal
briefing session with the Committee on 6 April, as a result of which
we agreed to provide a supplementary memorandum seeking to clarify
the role of the NPC Standing Committee in interpreting the Basic
Law.
5. Our offer to provide a supplementary memorandum was prompted by Mr Fifoot's concern that in paragraphs 15 and 31 of his evidence to
the Committee the Secretary of State had suggested that the scope
for the NPC's Standing Committee to interpret provisions of the
Basic Law was limited exclusively to the six national laws referred
to in Article 18 and set out in Annex III, although in paragraph 32,
the Secretary of State went on to note that the Standing Committee
also has jurisdiction in relation to foreign affairs and defence.
6. There is a further important category which the Secretary of
State did not mention, and where the Standing Committee would be
entitled to give interpretations, namely those provisions which
relate to the relationship between the Central Authorities and the
SAR, eg the functions of the CPG in relation to the Chief Executive
(Articles 43, 45 and 72(9)). Moreover, the Standing Committee of
the NPC also has the ultimate power to interpret the meaning of all
provisions of the Basic Law as opposed to their application in
individual cases. But, in judging individual cases, the SAR Courts
would not need to refer to the Standing Committee for the
interpretation of provisions falling within the SAR's autonomy.
They would only need to refer to the Standing Committee when judging cases in those areas falling outside the SAR's autonomy but the final decision would still be made in Hong Kong in the light of the
Standing Committee's interpretation.
CONFIDENTIAL
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