TNAG-1852-FCO40-2627-House-of-Commons-Select-Committee-on-Foreign-Affairs-enquiry-1989 — Page 163

x x

MINUTES OF EVIDENCE TAKEN BEFORE THE FOREIGN AFFAIRS COMMITTEE

MONDAY 14 JUNE 1989

Members present:

Mr David Howell, in the Chair

Mr Dennis Canavan Mr Michael Jopling Mr Ivan Lawrence Mr Jim Lester

Mr Ted Rowlands

Mr Peter Shore

Mr Ian Taylor

Mr Peter Temple-Morris Mr Bowen Wells

Mr Michael Welsh

343

The

ARTICLE 157 OF THE DRAFT BASIC LAW (HK105)

Supplementary Memorandum Submitted by the Foreign and Commonwealth Office

1. The Committee might appreciate further information about the interpretation of the Basic Law under Article 157 of the draft Basic Law (text attached), which the Secretary of State touched on in his oral evidence to the Committee on 22 March.

2. Article 169 of the first draft of the Basic Law was criticised for giving too much scope to the Standing Committee of the National People's Congress (NPC) to interfere in the functioning of Hong Kong's courts. The revised draft of the relevant provision has gone a considerable way to meeting those criticisms.

3. It is of course necessary to make provision for the resolution of disputes about the interpretation of the Basic Law. Since the Basic Law will be a law enacted by the Chinese National People's Congress, it is clearly not possible to exclude that body entirely from its normal involvement in the process of interpretation. Thus, paragraph one of Article 157 provides that the power of interpretation of the Basic Law will be vested in the Standing Committee of NPC. It is noteworthy that the Standing Committee has the same power to interpret any other law of the PRC, including the Constitution.

4. However, under paragraph two of Article 157, the SAR courts, in individual cases before them, will be authorised to interpret those provisions of the Basic Law which fall within the range of the SAR's autonomy and will not be required to refer to the Standing Committee in this area. The majority of the Basic Law's provisions come into this category.

5. Moreover, under paragraph three of Article 157, the SAR courts will also be able to interpret the other provisions of the Basic Law, ie those outside the SAR's autonomy. Those provisions are one which

concern:

(i) affairs which are the reponsibility of the Central People's Government (CPG)-ie defence and foreign affairs, and the six national laws which will be applied directly in the SAR (those referred to in paragraph two of Article 18 and set out in Annex III); and

(ii) affairs which concern 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)).

But, where a judgment of the SAR courts would be affected by their interpreting those provisions, and the court's judgment will be final, the courts will be required to seek an interpretation of the relevant provisions (and follow that interpretation) from the Standing Committee of the NPC. The SAR courts will then decide upon the individual case themselves in the light of the Standing Committee's interpret- ation. This procedure will be akin to that provided for by Article 177 of the Treaty of Rome.

6. In addition to conferring on the Hong Kong courts the power to interpret those provisions within the SAR's autonomy, Article 157 will limit the Standing Committee's power of interpretation in the following ways:

(i) Interpretations given by the Standing Committee will not affect judgments previously rendered

by the SAR courts.

(ii) Before the Standing Committee gives an interpretation of the Basic Law, it will be obliged to

consult the Committee for the Basic Law, half of whose members will be from Hong Kong.

The cost of printing and publishing these Minutes of Evidence is estimated by Her Majesty's Stationery Office at £§.

X