TNAG-2168-FCO40-3105-House-of-Commons-Foreign-Affairs-Committee-inquiry-into-Hong-1990 — Page 160

CONFIDENTIAL

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11 MAY 199

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RECEIVE

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DECISTRY

2 1 MAY 1990

DESK OFFICER

INDEX

PA

Fifoot

Thank you

REGISTRY

Action Taken

PS/Mr Maude

From:

Paul Fifoot

Legal Advisers

Date:

10 May 1990

CC Mr Paul, HKD

4 Brewer

14/5

FOREIGN AFFAIRS COMMITTEE: REPORT ON HONG KONG: GOVERNMENT

RESPONSE

1.

Your minute to the PS of 8 May refers to the penultimate sentence of paragraph 5 of the Government response in relation to the power of interpretation of the Standing Committee of the National People's Congress. The position is as follows.

2.

The first paragraph of Article 158 states that the power of interpretation of the Basic Law is vested in the Standing Committee of the National People's Congress. This reflects accurately Article 67 (4) of the Constitution of the PRC. second and third paragraphs of Article 158 of the Basic Law concern the concurrent power of the courts of the SAR to interpret the Basic Law and, in respect of the power to interpret "non-autonomy" matters, provide for a procedure whereby the courts of the SAR are to obtain an interpretation from the Standing Committee. However, the second and third paragraphs in no way restrict the general power of the Standing Committee to interpret the Basic Law. The power of the Standing Committee to interpret does not depend upon being invoked under paragraph 3 or otherwise on the existence of a dispute in litigation. It may itself take the initiative in interpreting the Basic Law. The only restriction provided by Article 158 is that if it does exercise its power of interpretation it shall consult the Committee for the Basic Law. The penultimate sentence of paragraph 5 of the response to the FAC was drafted with this in mind.

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Paul Fifoot

DA3AAX

RESTRICTED