TNAG-2487-FCO40-3618-Future-relations-between-Hong-Kong-and-China-1992 — Page 121

CODE 18-77

Reference.

Comment

the

It is possible that these restrictions, as well as those applicable to other posts, are inconsistent with Article 25 ICCPR, though arguments on both sides would be finely balanced.

13. BL 19

Comment

I agree entirely with the ICJ's criticisms of BL19. Mr Fifoot made precisely these points to Shao Tianren in Peking in December 1989 and requested the same amendments. I do not understand the relevance of the last two sentences of HKG's comment (at page 12); the territorial limitations referred to are already amply covered by the second paragraph of BL19. They do not affect the ICJ's point that the third paragraph of BL19 is at best superfluous and at worst unacceptable.

CHAPTER IX :

14.

CONSTITUTIONAL POSITION OF THE JUDICIARY AFTER 1997

Compatability of BL158 with the JD

Comment

The ICJ claim that BL158 clearly contravenes the JD. They argue that the interpretive functions of the NPC Standing Committee are inconsistent with the JD's provisions concerning the vesting of independent judicial power in HKSAR.

I agree with the ICJ that it would be far more satisfactory for the HK courts to be given the power of interpretation of the whole of the BL.

However I do not agree that BL158 is a clear breach of the JD. The JD is silent on where the power to interpret the BL is to be vested. In common law systems, the power of interpretation is an inherent power of the courts. In the Chinese legal system, it is a function of the legislative organ to interpret its own enactments. The BL is not only the constitution for theHK SAR; it is also a basic statute within the Chinese legal system. It is unsurprising that BL158 has been drafted in the context of the NPC's interpretive powers under the PRC Constitution.

The second paragraph of BL158 is in fact a much more acceptable formulation than the text of earlier drafts of the BL.

Public Line

Draw on the above.

15.

Judicial Service Commission