18
22 March 1989]
[Mr Lawrence Contd]
MINUTES OF EVIDENCE TAKEN BEFORE
RT HON SIR GEOFFREY HOWE, QC, MR ROBIN MCLAREN, CMG, and MR ALAN PAUL
has to go back to the provisions of Article 157 because that is intended to provide for the Hong Kong courts to be supreme within the limits of autonomy of the region. It is the Hong Kong courts that are able to interpret the matter there, but if a matter arises involving a conflict or possible con- flict with what one might call the federal law, then they are enjoined to seek the advice of the Standing Committee of the National People's Congress through the court of final appeal. It is in relation to the potential conflict with the federal law that the federal authorities must have a say. It is for that reason that the provisions in Article 18-the one we have just looked at—which list very pre- cisely the limited areas to which federal law apply. are so important.
16. But will the advice of the Standing Commit- tee be binding or will the decision of the court of final appeal in the region be able to ignore that advice?
(Sir Geoffrey Howe) No.If you look at the text of Article 157, when the Standing Committee makes an interpretation of the provisions concerned the courts of the region, in applying those provisions, shall follow the interpretation of the Standing Committee, so that in the last resort in the case of a conflict in the areas where conflict can arise and has to be resolved, then the provisions of the supreme court (if I can put it like that) do apply, but it would be quite impossible, granted that we are dealing with the establishment of a Special Autonomous Region of a sovereign country, to exclude the sovereign authority altogether. That is why it has been so important to limit the areas in which that authority can be invoked.
17. But is it advisory or is it binding in the last resort?
(Sir Geoffrey Howe) The courts of the region in applying these provisions shall follow the interpretation of the Standing Committee.
Mr Rowlands
18. So it is binding?
(Sir Geoffrey Howe) Yes, in the same way as, as I say, the ruling of the European Court of Justice has arisen under Article 177 within the areas of competence of Community law. That is why Annex 3, which lists the six laws, is of such import- ance. But I think there is no escape from the fact that in a complex jurisdiction, whether one is tal- king about the United States or any other federal structure, there must be some residual authority left for the supreme judicial body of the federal structure. This is why it is designed with such care. Chairman: I think your comparison with the European Court of Justice is illuminating because one of the tasks of this Committee later on this year will be to look at matters arising very much in the area of this House's relations with the rest of the European Community and the final auth- ority in the Community, so that is a very relevant analogy.
Mr Temple-Morris
[Continued
19. I would like to follow on Mr Lawrence's
questions, which tended to concentrate on Article 18 and related articles, including Article 157, and move on to Article 19. I appreciate, as the Foreign Secretary has told us, that has not yet been agreed but nevertheless that does seem to be very relevant to the amount of sovereignty that will be exercised by Peking over Hong Kong onward from 1997. "The courts of the Hong Kong Special Administra- tive Region shall have no jurisdiction over cases relating to the acts of state. The courts of the region shall obtain a statement from the Chief Executive on questions concerning the facts of state whenever such questions arise in the legal proceedings. The statement shall be binding on the courts," then there is an additional provision, that: "The Chief Executive shall obtain a certificate from the Central People's Government to issue such a statement which amounts to an Executive direction over the courts." I wonder whether the Foreign Secretary can amplify that. We may be in translation diffi- culties here in one statement saying “acts of state" and another statement in the article saying: “facts of state" but I think we are dealing very much with the same thing. How much attention does the Foreign Secretary give and how much can he illuminate the details of what constitutes an act of state, because basically almost anything can be an act of state and the Chief Executive has a clear power exercised through Peking to direct the judiciary accordingly?
(Sir Geoffrey Howe) I think one has again to take enormous credit for the fact that this issue is under discussion in this context and in this forum, if you remember what we are actually doing is setting out a constitutional document for a Special Autonomous Region on the other side of the world, particularly with a different cultural background, and grafting it on to the People's Republic of China. As a matter of fact, if you look at Article 19 yourself, casting your memory back to our days as law students together, you will recognise almost pre- cisely the proposition that we will have to discuss in an English court of law. The English legal system does provide for the recognition by the legal system of what are known as “acts of state” in relation to which certificates from the executive are normally accepted as conclusive in relation to the facts. So what we have here is an almost faithful repro- duction of the English legal framework. What is not yet here is a definition workable in the Chinese judicial system of what is meant by "acts of state". It is for that reason that this provision is not yet agreed. I emphasise the first part of my answer because it should be seen as miraculous that we have got within the framework of this Chinese constitutional document 95 percent of the law we learned together, leaving the 5 percent which is always the most difficult still to be worked out.
Chairman: Not all of us were law students in the past, not all of us are lawyers now. Perhaps if we could just move on to economics and business questions, because obviously if the Special Autonomous Region is to prosper and grow, then
No comments yet.
Private notes are available after approval.