TNAG-2329-FCO40-3373-Hong-Kong-contacts-with-academics-and-writers-1991 — Page 94

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 Committee. However, judgments previously rendered shall not be affected."

4.36.

4.37.

I would like to ask the following question in Beijing: How is article 158 consistent with the following passages from the Joint Declaration?

(i) "After the establishment of the HKSAR, the judicial system

and

previously practised in Hong Kong shall be maintained except for those changes consequent upon the vesting in the courts of the HKSAR of the power of final adjudication."

a Basic Law

(ii) "The National People's Congress ... shall enact (ii)"The

stipulating that after the establishment of the HKSAR the socialist system and socialist policies shall not be practised for 50 years.

Legislative interpretation is unknown to the common law. Socialist legal systems employ it. In my 1988 report, I wrote that a major problem is that:-

"[The] legislative-interpretative role [of the NPC] seems likely to

be undertaken according to criteria markedly different to normal canons of interpretation (at least in the eyes of common lawyers), with politically motivated decisions possibly bringing about a considerable encroachment into the high degree of autonomy the territory has been promised

I wrote also that:

"To date, the Chinese have nothing in their own legal system which

gives them a way of evaluating in detail the various risks and benefits of a judicial as opposed to a legislative function in this regard. Article 67 of the Constitution of the PRC gives the Standing Committee a general interpretative power over PRC law, including therefore over the Basic Law. So to say the least, it seems that the principle is got one that seems likely to be surrendered by them easily."

There is another matter: article 158 of the Basic Law provides that "if the Hong Kong courts ... need to interpret the provisions of the Basic Law about (a) responsibilities of the CPG, or (b) the relationship between the central authority and the Region, they must in