Hong Kongs Constitutional Debate: Conflict Over Interpretation


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How the Proposed Law on Hong Kong-Mainland China Rendition was Aborted

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Interpreting Hong Kong’s Basic Law: The Struggle for Coherence | H. Fu | Palgrave Macmillan

Published online: 19 Feb Ming Sing Democratization Volume 17, - Issue 1. Published online: 15 Jan Brian Fong Democratization Volume 24, - Issue 4.

Published online: 29 Sep The Hong Kong Basic Law sets out the sources of law , the relationship between the Hong Kong SAR and the Central Government, the fundamental rights and freedoms of Hong Kong residents, and the structure and functions of the branches of local government, and it provides for the amendment and interpretation of the Basic Law. The courts of Hong Kong are given the power to review acts of the executive or legislature and declare them invalid if they are inconsistent with the Basic Law.

The source of authority for the Basic Law is disputed.

Additional information

Chinese legal scholar Rao Geping argues that the Basic Law is a purely domestic legislation deriving its authority from the Constitution of the People's Republic of China , [5] while some legal scholars argue that the Basic Law derives its authority directly from the Sino-British Joint Declaration. It is also essential in determining the Hong Kong courts' jurisdiction in issues related to the PRC domestic legislations. The first draft was published in April , followed by a five-month public consultation.

The second draft was published in February , and the subsequent consultation period ended in October The Government of Hong Kong sought two NPCSC interpretations on Basic Law provisions regarding the right of abode and the term of office of a new Chief Executive after his predecessor has resigned before the end of his term, in and respectively.

The first of the two occurred in , and concerned the amendment of the Chief Executive and the Legislative Council election methods for and respectively. The second was issued in November on the substantive requirements of lawful oaths and affirmations as stipulated in Article of the Basic Law. As interpretations by the NPCSC are not retroactive, [13] an interpretation on the Basic Law does not affect cases that have already been adjudicated. The basic principles for interpreting the Basic Law are described in Article and case law. Hong Kong courts may also interpret the Basic Law during adjudication.

The first stage concerns the "classification condition", which is satisfied if the provision to be interpreted concerns either affairs within the responsibility of the Central People's Government or the relationship between the Central Authorities and Hong Kong. When an excluded provision helps the court to construe a non-excluded provision, the CFA is not required to request an NPCSC interpretation on the former provision. Instead, the CFA applies the "predominant test", in which the court asks which provision is predominantly the one needed to be interpreted in the present adjudication.

The condition is satisfied when the court needs the excluded provision to be interpreted and that the interpretation will affect the judgment on the case. Hong Kong courts use the purposive approach to interpret the Basic Law. Since Hong Kong is a separate legal system from that in mainland China, its courts are bound to adopt the common law approach during interpretation.

Why are there protests in Hong Kong? All the context you need

Albert Chen has described NPCSC interpretations to be the "major cause of constitutional controversies" since the handover. The applicants argued that the Provisional Legislative Council , which was established unilaterally before the handover, was unlawful, which would void any law it enacted. The court dismissed this argument. Among other reasons, the court held that as a local court it had no power to review an act of a sovereign authority. He also noted there was no "detailed review" of the Chinese constitution during the trial.

The Hong Kong government later sought an interpretation of Articles 22 and 24 from the Standing Committee of the National People's Congress to avoid a potential influx of over a million Mainland residents according to Government estimates into Hong Kong. This has triggered a debate on judicial independence in Hong Kong.

International Encyclopaedia for Constitutional Law

Although the Basic Law has not been amended since its promulgation, the procedures for amendments to the Basic Law are laid out in Article No amendments can "contravene the established basic policies of the People's Republic of China regarding Hong Kong". If initiated within the NPC, the suggested amendment must first be placed on the agenda by the Presidium before being debated and voted upon. Either way, the amendment must also be approved by the other side e. From Wikipedia, the free encyclopedia.

Foreign relations. Culture Economy Education Geography History. This article's Criticism or Controversy section may compromise the article's neutral point of view of the subject.

Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation
Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation
Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation
Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation
Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation
Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation
Hong Kongs Constitutional Debate: Conflict Over Interpretation Hong Kongs Constitutional Debate: Conflict Over Interpretation

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