Hong Kong’s Constitutional Debate: Conflict Over Interpretation PDF
Preview Hong Kong’s Constitutional Debate: Conflict Over Interpretation
HONG KONG'S CONSTITUTIONAL DEBATE OONFLICT OVER INTERPRETATION HONG KONG'S r CONSTITUTIONAL PEP : CONFLICT OVER INTERPRETATION Edited by Johannes M M Chan HLFu Yash Ghai # m * * & n& *t HONG KONG UNIVERSITY PRESS Hong Kong University Press 14/FHingWai Centre 7 Tin Wan Praya Road Aberdeen Hong Kong © Hong Kong University Press 2000 First published 2000 Reprinted 2001, 2009 13-ISBN 978-962-209-509-0 10-ISBN 962-209-509-7 All rights reserved. No portion of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage or retrieval system, without permission in writing from the publisher. Secure On-line Ordering http://www.hkupress.org Printed in Hong Kong by Corporate Press (HK) Ltd., Hong Kong, China Contents Preface ix Acknowledgements xiii Contributors xv •I Part I: Academic Analysis Litigating the Basic Law: Jurisdiction, Interpretation and Procedure 3 Yash Ghai Why the Court of Final Appeal Was Wrong: Comments of the 53 Mainland Scholars on the Judgment of the Court of Final Appeal Xiao Weiyun and others Judicial Independence: A Reply to the Comments of the Mainland 61 Legal Experts on the Constitutional Jurisdiction of the Court of Final Appeal Johannes M M Chan The Court of Final Appeal's Ruling in the 'Illegal Migrant' Children 73 Case: Congressional Supremacy and Judicial Review Albert HY Chen Supremacy of a Different Kind: The Constitution, the NPC, and the 97 Hong Kong SAR HLFu vi Contents The Court of Final Appeal's Ruling in the 'Illegal Migrant' Children 113 Case: A Critical Commentary on the Application of Article 158 of the Basic Law Albert HY Chen The Reference to the Standing Committee of the National People's 143 Congress under Article 158 of the Basic Law: The Question of Methodology Denis Chang The Proper Law for the Conflict between the Basic Law and Other 151 Legislative Acts of the National People's Congress Bing Ling What the Court of Final Appeal Has Not Clarified in Its Clarification: 171 Jurisdiction and Amicus Intervention Johannes M M Chan Interpretation of Law by the Standing Committee of the National 183 People's Congress Hongshi Wen The NPC Interpretation and Its Consequences 199 Yash Ghai m Part II: Public Debate Reaction to the CEA Decision 219 Reaction to the Clarification 246 Impact Assessment of the Government 259 Interpretation or Amendment 305 Hong Kong's Constitutional Debate: Conflict over Interpretation vii •I Part III: Cases and Documents Ng Ka Ling and Others v Director of Immigration [1999] 1 HKLRD 315 415 Ng Ka Ling and Others v Director of Immigration (No 2) [1999] 461 1 HKLRD 577 Chan Kam Nga and Others v Director of Immigration [1999] 463 1 HKLRD 304 The Chief Executive's Report to the State Council Concerning the 474 Right of Abode The Interpretation by the Standing Committee of the National People's 478 Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China The Speech by Mr Qiao Xiaoyang in the NPC Standing Committee 481 Lau Kong Yung and Others v Director of Immigration, Final Appeal 487 Nos. 10 and 11 of 1999 (Civil) (On Appeal From CACV Nos. 108 and 109 of 1999) Preface This book recounts the fascinating tale of litigation on the Basic Law of the Hong Kong Special Administrative Region. The Hong Kong courts were confronted, within the first week of the resumption of sovereignty, with a constitutional challenge to the validity of its legal system and the transitional arrangements for its legislature following the appointment of the provisional legislature, in apparent disregard of the Basic Law. As the HKSAR government and Court of Appeal defined the issue, it went to the heart of the authority of the National People's Congress over Hong Kong, to the very 'sovereignty' of the People's Republic of China . Since then several other constitutional issues have made their way to the courts, seen as the only genuinely autonomous body in the Special Administrative Region. The intense constitutional litigation that has taken place since the Chinese resumption of sovereignty owes itself to Hong Kong's common law system, which is entrenched in the Basic Law. It is the only national law, with the uncertain exception of the Macau Basic Law, that provides a basis for judicial review of legislation. It is inconceivable, at least for the time being, that in the mainland People's Republic of China, constitutional issues of similar constitutional importance would ultimately be determined by an independent court. The mainland system is based on the Leninist principle of state organization, with the overriding imperative of the political. Major constitutional issues are resolved politically, not through independent courts. The logic of the Leninist state qualifies the constitutional jurisdiction of the Hong Kong courts. As far as legal questions about the internal arrangements of Hong Kong are concerned, the Hong Kong courts are able to make final decisions. But as regards Basic Law provisions concerning
The list of books you might like
