Urgent Business: Hong Kong, Freedom of Expression and 1997
which are the responsibility of the Central People's Government or concerning the relationship between the central authorities and the Region", the courts are obliged to seek and follow the ruling of the Standing Committee. The NPC Standing Committee, moreover, has an overriding and general power with regard to the interpretation of the Basic Law.3
The power of interpretation under Article 158 is widely regarded as being inconsistent with the stipulation in the Joint Declaration that the SAR courts are to have "independent judicial power, including the power of final adjudication". The interpretation of legislation, the International Commission of Jurists (ICJ) has rightly argued in this regard, should be "essentially a judicial function". Here, however, it is vested in a political body, the Standing Committee of the NPC, which is under the leadership of the Communist Party."
While Article 158 leaves little doubt about where the power of final interpretation lies, there may well be uncertainties in deciding when exactly the Standing Committee should be approached or would itself feel inclined to intervene to adjudicate in questions or conflicts that require an interpretation of the Basic Law. These uncertainties may be particularly acute with regard to Article 23 of the Basic Law as it concerns the relationship between the central authorities and the SAR and therefore comes under Article 158. The Hong Kong SAR is required, under Article 23, to enact laws prohibiting, inter alia, "subversion", a concept unknown in the current legal language of the territory. Inevitably, it seems, most, if not all, prospective prosecutions under any such law will require interpretation from the NPC Standing Committee.
2.3 FREEDOM OF EXPRESSION
According to the Basic Law's Article 27 on "Fundamental Rights and Duties of the Residents", the people of the Hong Kong SAR
...shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.
The wording of this provision closely follows Article 35 of the 1982 Chinese Constitution, under its Chapter III on "Fundamental Rights and Duties of Citizens", and in many ways its status within the constitutional framework of the Basic Law seems to be similar.
3 Countdown to 1997: Report of a Mission to Hong Kong, (Geneva: International Commission of Jurists, 1992) 113.
4
The Joint Declaration, Para. 3(3) and Annex I, Article III; Basic Law, Article 158.
5 Supra note 3.
6
The NPC itself, which is China's legislature, is a rubber-stamping body for the policy directives of the Standing Committee. China's judiciary exists also to support or give effect to state policies.
9
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