THE FOREIGN AFFAIRS COMMITTEE
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that the PRC Constitution states that "It is the honourable duty of citizens of the People's Republic of China to perform military service and join the militia in accordance with the law." Any suggestion that this article should apply in Hong Kong would clearly be quite unacceptable. The Basic Law must be the "son", not of the PRC Constitution, but of the Joint Declaration.
Interpretation of the Basic Law
2.8. The Joint Declaration promises that the Hong Kong SAR shall have "independent judicial power, including that of final adjudication."2 Under Article 157 of the second draft of the Basic Law, “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... the provisions of this Law which are within the limits of the autonomy of the Region." The Standing Committee, however, reserves to itself power to provide final interpretation of the "provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or the relationship between the Central Authorities and the Region.” In a memorandum to the Committee the FCO stated "Since the Basic Law will be a law enacted by the Chinese National People's Congress, it is clearly not possible to exclude that body entirely from its normal involvement in the process of interpretation."3 But the "normal involvement" of the legislature in the interpretation of the law would not be recognised in Britain nor in other western democracies. In the common law tradition, which has been the basis of legal practice in Hong Kong under the British administration, it is the courts which interpret the law and which act as a very important check on the executive. If "After the establishment of the Hong Kong Special Administrative Region the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained"4, then the role of the courts (and especially of the Court of Final Appeal) as interpreters of those laws should also be maintained. As Ms Gladys Li, herself a barrister, told us in evidence in Hong Kong "The Joint Declaration... provides... that there will be set up in Hong Kong a final court of appeal. I have ... interpreted that as meaning that the jurisdiction previously enjoyed by the Judicial Committee of the Privy Council, which includes judicial interpretation of the most basic and fundamental consti- tutional questions, will similarly be enjoyed by the final court of appeal in Hong Kong." Mr Andrew Wong, Chairman of the OMELCO Standing Panel on Constitutional Development, told us that he thought it important to find “methods of doing away with legislative interpret- ation, because legislative interpretation is essentially political." He suggested a couple of ways in which it might be done. Total confidence in the legal system is a vital prerequisite for social stability. In our view the confidence of the people of Hong Kong, that the laws existing before the creation of the Hong Kong Special Administrative Region are being maintained, will exist only if there is a Joint Constitutional Court situated in Hong Kong which will continue to interpret the laws in accordance with the legal principles that have hitherto held sway in the Territory. We are hopeful that the Standing Committee of the National People's Congress would wish to delegate its interpretative powers to that Constitutional Court, in order to generate the complete trust in the independence of the Hong Kong judicial system envisaged in the Joint Declaration.
Human Rights
2.9. Giving evidence to us at the beginning of our inquiry Sir Geoffrey Howe said, "the possibility is that [fundamental provisions on human rights] should now be translated into a Hong Kong Bill of Rights which would form part of the existing law which would continue after the transfer of power."" We discussed this possibility with many of those to whom we spoke during our visit to Hong Kong. Some felt that the two International Covenants referred to in Article 39 of the second draft of the Basic Law should themselves be incorporated into the Basic Law. Others argued that human rights legislation should be given a superior status. Mr Wong explained: “When I talk about a superior law or an organic law, that may be a bit easier, because it will avoid the problems of one ordinance which is on a par with another
* Article 55.
* Paragraph 3 (3).
› Evidence p 343.
◄ Joint Declaration, Annex I, Section II.
• Q 387.
Q 534.
'Q 28.
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