CONFIDENTIAL
it would hardly be possible to raise a question as to the aptness of a provision that the power of interpretation should rest with the centre. But we would in no way argue that the Article be amended to confer the power on the supreme court in Peking.
The issue here is not, however, whether the provision is appropriate, but whether it is consistent with the JD and the question is whether the right of final adjudication necessarily means not only that the court has the last word, but that it also has a comprehensive jurisdiction. The Chinese have addressed that question and their answer is in the negative; they say that the power of final adjudication relates to the power to take the final decision in matters within the [ordinary] jurisdiction of the court and does not extend that [ordinary] jurisdiction. The power of interpretation of the BL is not within its [territorial] jurisdiction (though in fact they have conferred some measure of jurisdiction in "autonomy" cases on the SAR courts), and therefore the power of final adjudication does not mean that the SAR courts have the last word on interpretation questions. I enclose an extract from an article by Xiao Weiyun, one of the Chinese draftsmen of the BL, on this point.
This appears to us to be a cogent response to the argument that Article 157 is not consistent with the JD. It also appears to be the view of the Wade/Cowen opinion that a question of consistency is not involved. Although they argue at length for a constitutional court of appeal on constitutional and legal grounds, they nowhere say that Article 157 is not consistent with the JD; and their general statement on the question of a "legal umpire" on page 2 is that "neither the Joint Declaration nor the draft Basic Law offers any solution".
Subject to the views of the Attorney-General, therefore, we would not propose to add Article 157 to the list of non-consistency items.
CONFIDENTIAL
Paul Fifoot
8 November 1989
No comments yet.
Private notes are available after approval.