TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 152

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No law or administrative rules and regulations shall contravene the Constitution".

Nothing in the Constitution indicates that article 5 can be

suspended. Thus, neither the Basic Law nor

exempted or

laws of Hong Kong can

constitution. 66

ultimately contravene the Chinese

There is nothing unorthodox in this. An autonomous

region of Australia, if it could be created by the Australian

Parliament under the Australian constitution, would be

ultimately subject to a repeal of the instrument creating

it. Nothing the Australian Parliament could do under the

constitution could prevent such repeal. It could promise not

to do So for fifty years. But if it broke that promise, there would no legal barrier to its doing so. The promise is

a political commitment to the people of Hong Kong. It rests

on the politics, personnel and institutions of the PRC. It

does not rest on law, at least on any law which can be

enforced under the constitution of the PRC. This reality

must be clearly faced.

Condemnations in China of the notions of the rule of

law derive in part from the different approach to the

interpretation of legislation adopted by the constitution of

that country. It was partly

partly for reasons of history and

partly by accident that the notion of judicial review

developed in the common law tradition. The history is found

in the early decisions of the Judicial Committee of the Privy Council by which, even before the American Revolution, laws

of the colonies were sometimes struck down by judges as invalid when they were found to be incompatible with laws made in Westminster. It was this judicial empowerment which

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