TNAG-2329-FCO40-3373-Hong-Kong-contacts-with-academics-and-writers-1991 — Page 93

"Some people claimed that since the Joint Declaration provided that 'the HKSAR will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibility of the CPG', the affairs to be managed by the CPG are strictly limited to foreign affairs and national defence; all other affairs are within the scope of the HKSAR's high degree of autonomy and should be managed by the HKSAR. It must be pointed out that this is a misinterpretation of the Joint Declaration. This sentence of the Joint Declaration only says that foreign affairs and national defence should be managed by the CPG. It does not say that the affairs managed by the CPG are limited to foreign affairs and national defence. Even looking at the Joint Declaration itself, it can be seen that those matters stipulated to be managed by the CPG are not restricted to foreign affairs and national defence. [For example], the CPG has the power to appoint the Chief Executive and principal officials. And is evident that the CPG has the power to formulate the Basic Law."

ity js

Its relevance

I would be interested to know the official British view on this before formulating my own position on how to move forward here. There seems to be a startling difference in possible interpretation. can be seen in the following examples, one from the judicial system, one from the legislative. The judicial example concerns the role of the NPC in interpreting the Basic Law, the legislative example concerns the role of the NPC in invalidating HKSAR legislation.

Judicial Autonomy?

Article 158 of the Basic Law provides that

"The Standing Committee of the National People's Congress shall

authorise the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region. ກ

"The courts of the Hong Kong Special Administrative Region may also

interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing