TNAG-1863-FCO40-2643-Future-of-Hong-Kong-Basic-Law-1989 — Page 47

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Xiar Miriger

JOURNAL OF CHINESE LAW

previously suited to Hong Kong will be preserved._ _Finally, in adjudi- cating a case, the courts may refer to precedents in other common law jurisdictions. These examples reflect the high degree of judicial autonomy which will be enjoyed by the Hong Kong SAR.

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In defining the jurisdiction of the courts of the Hong Kong SAR, it should be clearly provided that the adjudicatory authority belongs to the courts of the Hong Kong SAR and that neither the executive nor the legislature of the Central Government or of the Hong Kong SAR may intervene. The jurisdiction of the courts of the Hong Kong SAR should also be clearly specified, so that the courts have guidance and know which cases they have jurisdiction over.

"Adjudicatory authority" and "power of final judgment" are related but different concepts. "Adjudicatory authority" refers to the authority to hear and decide a case, whereas "power of final judg- ment" refers to the authority to render a final judgment on a case over which a court has adjudicatory authority, so that it is not possible to appeal the case elsewhere. To disregard this principle is to undermine the power of final judgment and to encroach upon the principle that courts should enjoy such power. The issue of properly demarcating the court's jurisdiction and making it clear which cases a court may or may not adjudicate does not relate to the question of the power of final judgment. The jurisdiction of a court in any place or locale is limited. A district and its district court have certain jurisdictional limits, and a higher level court and a district court should each have its own jurisdictional territory. It is completely appropriate that the Basic Law should clearly define the jurisdiction of the courts of the Hong Kong SAR.

The courts of the Hong Kong SAR generally have jurisdiction over cases that occur within the administrative region. Nevertheless, since these are only courts of a local administrative region, they have no jurisdiction over cases that touch on national diplomatic affairs or defense issues. It has further been suggested that courts of the Hong Kong SAR should have no jurisdiction over the administrative behav- ior of the Central People's Government, acts of a purely political nature, or over acts committed in the name of the state. These views are all proper, and this demarcation of jurisdictional competence does not affect the court's power of final judgment. Naturally, the courts have jurisdiction over cases involving any act of a commercial nature, regardless of whether or not they are acts of the government.

In order to implement the general policy of one country, two systems" and to preserve the existing judicial system of Hong Kong in

48. Id. at 7, 8.