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17
22 March 1989]
[Mr Wells Contd]
THE FOREIGN AFFAIRS COMMITTEE
RT HON SIR GEOFFREY HOWE, QC, Mr Robin McLaren, CMG, and Mr Alan Paul
third draft. Can we be absolutely certain there will be no further amendments? Can I add to that ques- tion-you say this Basic Law will have the status of law of the People's Republic of China. Will it therefore be enacted in some way by the People's Republic once it is agreed?
(Sir Geoffrey Howe) Yes. The Basic Law is under preparation by the legislative organ of the People's Republic of China and will be enacted in that form. But, of course, it contains provisions which are to be applied and administered as the basic law of the SAR. On your first question, I think it was always visualised that there would be a third draft. Though I agree I had at one time the impression that the second draft was going to be the final one, I was misinformed about that; it always has been intended that there would be three drafts and it has always been intended that the third draft will be the final draft.
Chairman: Could we just turn to this question of the ultimate adjudication, as it were, the status of the executive, legislative and independent judicial powers, which are to remain basically, as we under- stand it, in Hong Kong?
Mr Lester
14. Secretary of State, in terms of the 14 original major points-now down to rather less perhaps one of the most important is the statement in the Joint Declaration, which stipulated that the Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial powers, including the power of final adjudication. It said the laws currently in force in Hong Kong will remain basically unchanged. But in Article 159 of the draft Basic Law it provides that "the laws previously in force in Hong Kong shall be adopted as law of the Region except for those which the Standing Committee of the National People's Congress declares to be incon- sistent with this Law. That really raises two questions which I would like to put to you. First of all, are the powers given to the Standing Commit- tee by this Article consistent with the legislative and independent judicial powers provided by the Joint Declaration? Secondly, are the powers of interpretation of the law given to the Standing Committee by Article 157 consistent with the promise of final adjudication in the Joint Declar- ation?
(Sir Geoffrey Howe) Yes. I think it is important to look at the whole clutch of articles on this because you raise a very crucial point. If you look at Article 19, that aims to ensure that the courts in Hong Kong shall have the same jurisdiction as at present. That article, as you will see, has not yet been approved by the Basic Law Drafting Commit- tee because the drafting in their view could be improved, but that is one of the key starting-points. Article 81 provides that the power of final adjudi- cation in the SAR is vested in the court of final appeal of the SAR and Article 84 provides for the exercise of judicial power independently and free from any interference. If you put those alongside Article 157, what one has to recall is that the
[Continued
HKSAR is a special Administrative Region of the unitary state of China and it is not an independent or federal territory, so some provision for resolving the disputes on the interpretation of the Basic law had to be found and that is what Article 157 is seeking to do. It would not be possible to exclude the sovereign authority from that process any more than one could do it in relation to a part of the United Kingdom, but if you look at Article 157 it has gone a very long way towards conferring judicial power of interpretation even in the area of the organs of the SAR. It is a revision, of course, of the previous Article 169 and Article 157 makes clear that it is the Hong Kong courts that are auth- orised to interpret on their own, in the phrase that keeps on recurring, those provisions of the Basic Law which fall within the range of the SAR's auton- omy. The SAR courts will also be able to interpret other provisions, that is to say, those relevant to defence and foreign affairs or relations between the centre and the SAR, which is the most important one, but on those matters 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 draft to be made. It is extremely interesting to compare that provision with Article 177 of the Treaty of Rome, which provides for reference from national courts to the European Court of Justice at that kind of intermediate stage in the process for determination of points arising in the relationship between national law and Com- munity law. I do not know whether the draftsmen of the one had the other in their minds when they did it but they are very closely comparable and I think it must be recognised that when you have something such as an SAR forming part of a larger sovereign state then you need something of that kind formulated pretty closely along these lines.
Mr Lawrence
15. Your answer, Foreign Secretary, is not all that clear to me. I am not saying it is your fault. It may be that there is a deliberate lack of clarity, but the question of whether the Hong Kong legal system should be paramount in the end was one of tremendous importance from the very start of these negotiations. What would the situation be if the Standing Committee of the People's Congress said that the Hong Kong law on, say, a matter of human rights or democracy is inconsistent with Chinese law and, therefore, should not stand and the judicial power in Hong Kong makes a final adjudication saying that it is not inconsistent and should stand? If the matter is referred then to the Standing Committee, how is the matter further resolved? In the end is it the Chinese who decide what is the ultimate resolution of any conflict between Chinese law and Hong Kong law or is it an independent judiciary of Hong Kong which decides? That is the question and if you will forgive my saying so, the answer was not clear from what you have told us.
(Sir Geoffrey Howe) I do not doubt that clarity can always be improved upon, particularly when discussing matters of constitutional law, and one
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