TNAG-2168-FCO40-3105-House-of-Commons-Foreign-Affairs-Committee-inquiry-into-Hong-1990 — Page 79

BASIC LAW

CONFIDENTIAL

Background

Constitutional Court

(What compensating constitutional arrangements are there to

make up for the lack of a constitutional court?)

1. The Chinese did not accept the concept of a

constitutional court as that would establish an institution

superior to, or having the power to bind, the organ which,

under the PRC Constitution is charged with interpretation of

the Constitution and statutes, ie. the Standing Committee of

the National People's Congress. The NPC is the highest organ of State power in the PRC. Instead, the Basic Law

provides that there shall be a committee on the Basic Law

which the Standing Committee is required to consult before

giving an interpretation of the law. The Committee on the

Basic Law will consist of 12 members, 6 from the mainland

and 6 from Hong Kong, and shall include people from the legal profession. Hong Kong members are required to be Chinese citizens who are permanent residents of Hong Kong with no right of abode in any foreign country. They will be

appointed by the Standing Chief Executive, the President of

the Legislative Council and Chief Justice of the Court of

Final Appeal. The Basic Law Committee also advises the

Standing Committee on the compatibility of laws under

Article 17, the extension of Chinese laws under Article 18

and the amendment of the Basic Law.

State of Emergency (Article 18)

(Our reply to the FAC report defended the outcome on

Article 18. The Committee will want to know in a little

more detail why we think it is acceptable)

The fourth paragraph of Article 18 provides for a state

of emergency. A state of emergency may be declared by the

2.

CONFIDENTIAL