3. It is, of course, perfectly legitimate in terms of the JD and the BL to carry this reservation forward. JD 156 refers to the provisions of the ICCPR "as applied to Hong Kong"; so does Article 39 of the Basic Law. "As applied" is taken on all sides as meaning subject to the reservations referred to above. You may, however, wish to consider whether the FAC should be informed of the correct position.
4.
The only other matter of explanation of the BL which drew my attention in reading Mr Maude's evidence was as regards his answer to question 63 on page 12. In answer to a question from Mr Lawrence about Article 158 in which
Mr Lawrence referred to human rights aspects of the Basic Law and stated "It goes back to Peking for interpretation at the end of the day", Mr Maude said:-
5.
"It can do in some circumstances and subject to certain procedures which are set out, I think, in Article 158 of the Basic Law. But it is certainly not, I think, envisaged either by the Chinese and certainly not by Hong Kong that this would be a routine practice in the procedure."
The second sentence is certainly true, but the first does not tell the whole story. There are circumstances and there are procedures in which the courts of Hong Kong are required to seek the view of the Standing Committee of the NPC on the interpretation of the Basic Law. However, these procedures and circumstances do not affect the power of the Standing Committee, of its own motion, to interpret the Basic Law. Article 158 of the Basic Law is, so far as the Standing Committee is concerned, only a particular instance of the power of the Standing Committee under Article 67 of the PRC Constitution to interpret statutes. You may also wish to consider whether this point should be drawn to the attention of the FAC.
of
Paul Fifoot
Legal Advisers
26 July 1990
3 PFAAP
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