NET MITCHELL-HEGGS
OPINION
DATE 15th June 1989
PAGE Ι
Sequel to the Opinion of 23rd September 1988 on the subject of
the need for there to be a CONSTITUTIONAL COURT for the
TO
H.K.S.A.R., post 1997.
: The Basic Law of the H.K.S.A.R. Consultative Committee
and
The Basic Law of the H.K.S.A.R. Drafting Committee
and
to Dennis Chang Esq., Q.C. on behalf of the Liaison Committee of
the Bar of Hong Kong.
1. In the previous Art. 169 of the Draft Basic Law of the Hong Kong Special Administrative Region, reference was made to a "Committee" that would have some advisory role in the formula X tion of the Basic Law and, presumably, its interpretation in due course. Now Art. 157 of the new text adopted by the Stan ding Committee of the National Peoples Congress of the Peoples Republic of China on the 21.2.89. there is again reference to this Committee.
2. In the aforementioned Opinion of the 23.9.88., it was stiosoud
that there should be a restraint to the unlimited powCIS the Standing Committee to interpret the Basic Law of the HKSAR, whether by an order to a judge in Hong Kong, seized of a matter giving rise to the interpretation of the Basic Law or by virtue of a reference from a court in Hong Kong, before the Judge being able to reach a final judgment, and that this restraint might be exercised.
3. In either case, we stressed the importance of maintaining the
independance of the judicial authority and organs in Hong Kong in order to safeguard the principles enshrined in Art. 31 of the Constitution of the Republic of China of 4.9.82, and the Sino-British Declaration of the 19.9.84. (i.e. that during the 50 years that follow 1.7.97, the socialist system will not be applicable to Hong Kong and that the capitalist system and the way of life that presently prevails in Hong Kong will not be changed), which must demand that the interpretation of the Ba sic Law should be referred to a final Supreme Judicial Authority, or Constitutional Court, rather than an Executive
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