TNAG-1863-FCO40-2643-Future-of-Hong-Kong-Basic-Law-1989 — Page 207

UINET MITCHELL-HEGGS

organ of the state.

DATE

PAGE

2

4. In the first Draft Basic Law, in Art. 169, there was reference

to a "Committee for the Basic Law" which was to be consulted by the Standing Committee of the National Peoples Congress, before giving an interpretation of the Basic Law, or if a pro posed law for the HKSAR was not in conformity with this Basic Law of the previous draft, the Standing Committee was intended to seek the consultation of this "Constitutional Committee" for the Basic Law on any proposed amendment. It seemed there fore that there was provision for the existance of a Constitu tional Court or Advisory Committee that would receive the up peals or referals on matters regarding the text or the inter pretation of the Basic Law and would advise the Standing mittee accordingly after due process and consideration of all

the facts and issues involved.

Com

where

No

5. According to the latest Draft of the Basic Law that was appro

ved by the Standing Committee of the National Peoples Congress on the 21.2.89., these provisions are now embodied in a new Art. 157. Here we observe however that the Standing Committee may intervene in the interpretation of any matter which it considers to fall within the responsibility of the Central Government; that this intervention may take place either

› directly, or at the request of "any person" (left undefined).

This new Art. 157 provides that the Standing Committee must be called upon by the Court of Final Appeal in the Hong Kong Spe cial Administrative Region in any matter requiring the inter pretation of the Basic Law.

6. This gives rise to two problems: in the first place, it would

seem there is nothing to prevent the Standing Committee from taking unilateral action to interpret the Basic Law outside any matter under consideration before the Hong Kong Courts. There must be a safeguard therefore against the possibility that the Standing Committee may seek to modify the Basic Law through the guise of seeking to interpret it.

7. In the second place, the new text, while referring to the

existance of a "(Constitutional) Committee" for the Basic Law of Hong Kong does not define how this should be composed nor how it should be consulted before the Standing Committee may proceed with its interpretation of the Basic Law.

8. In the minds of certain people involved in these matters in

the Faculty of Law of the University of Peking, it appears that this "Committee" for the Basic Law is principally in existance to enable the drafting of this document to be completed. In a recent meeting in Peking, Professor François Luchaire was given the impression that the members of this "Committee" thought that their task was virtually over after the finalization of the text of the Basic Law.

It 304