TNAG-1851-FCO40-2626-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1989 — Page 212

20. April 1989]

THE FOREIGN AFFAIRS COMMITTEE

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[Continued

CHAPTER I

Article 157 of the Draft Basic Law (DRT) (2)

1. The supplementary memorandum submitted by the Foreign and Commonwealth Office to the Committee on the above article (FCO/TAC/10/89) fails to address a number of points which are crucial to an understanding of why, in our view, Article 157 is in breach of the Joint Declaration (JD).

2. (i) The Standing Committee of the National People's Congress is a legislative body not a judicial body (Article 58 of the Constitution of the PRC). This is underlined by the fact that under Article 65 of the Constitution no one on the Standing Committee shall hold office in, inter alia, any judicial organs

of the State.

(ii) Thus, when the Standing Committee of the National People's Congress "interprets" the Consti- tution or any other law, that interpretation has legislative effect. The "interpreted" law has to be read and applied with the interpretation.

(iii) Under Article 157, the power of interpretation of the Basic Law is vested in the Standing Committee and there is no restraint imposed on that power in Article 157 or elsewhere.

(iv) The authorisation conferred on the courts of the HKSAR to interpret the provisions of the Basic Law which are within the limits of the autonomy of the SAR “on their own" merely allows the courts of the HKSAR to interpret these provisions without reference to the Standing Committee. It does not amount to a prohibition on the Standing Committee interpreting such provisions.

3. (i) The system whereby the Standing Committee in effect "legislates" is part of the socialist system of the PRC.

(ii). It is incompatible with the provisions of the JD that there should be no restraint on the Standing Committee's powers to "legislate" for the HKSAR. It conflicts with the promise not to practise the socialist system in the HKSAR and it conflicts with the promised "high degree of autonomy".

(iii) The system whereby a legislative body can dictate to a judicial body how a law is to be interpreted. also conflicts with the following provisions of the JD:

(a) that the judicial system previously practised in Hong Kong would be maintained except for those changes consequent upon the vesting in the courts of the HKSAR of the power of final adjudication;

(b) that the HKSAR would be vested with independent judicial power including that of final adjudi.

cation;

(c) that the courts shall exercise judicial power independently and free from any interference;

(d) that the power of final judgment of the HKSAR shall be vested in the court of final appeal in the

HKSAR.

4. Article 157 is not primarily designed "to make provision for the resolution of disputes about the interpretation of the Basic Law" (ref-paragraph 3 of the FCC memorandum). It is, firstly, designed to apply the socialist system of the PRC of legislative interpretation to the HKSAR. Secondly, because it recognises the effect of judicial precedent as a source of law under the common law system, judicial interpretation of the Basic Law by the HKSAR courts has to be authorised but the source of that authority is no longer the inherent right of the courts as it is under the common law system, whose preservation is supposedly guaranteed under the JD, but the Standing Committee of the NPC.

Finally, having thus already thoroughly compromised the principle of judicial independence, it leaves judicial independence in tatters by forcing the judiciary of the HKSAR to become the mouthpiece of the Standing Committee.

5. Under Article 18 of DBL (2), the listed national laws in Annex III will not necessarily be applied directly in the HKSAR. Article 18 provides that they shall be applied locally "by way of promulgation or legislation". If applied by legislation (presumably local legislation), then no problem of conflicting interpretations will arise. The HKSAR courts will be interpreting local legislation only and if it is felt in Beijing that the interpretations do not accord with the spirit of the national legislation, then the Chief Executive of the HKSAR will no doubt be asked to put before the local legislature the necessary amendments to the local legislation. In this way, judicial independence within the HKSAR is not compromised nor is any interpretation of national law involved.

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