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from the perspective of Chinese law and common law
Background Pros and Cons from the perspective of
Chinese law Pros and Cons from the perspective of
common law Conclusion
The 1990 NPC Decision: ◦ Method for the formation of the First LegCo◦ Preparatory Committee
“…shall be responsible for preparing the establishment of the HKSAR and shall prescribe the specific method for the formation of the first Government and the first LegCo in accordance with this decision”
“Through Train” Policy Governor Chris Patten’s reform package in
1992
The 1994 NPC Decision: withdrawal of the “through train” policy
The Preparatory Committee was set up in 1996.
Provisional Legislature became necessary as election could not take place under British rule.
NPC’s ratification of the PC’s Decision to establish the Provisional Legislative Council in March 1997. (The 1997 NPC Decision)
First case in the Court of Appeal after the establishment of HKSAR.
Defendants accused of a crime of conspiracy to pervert the course of public justice.
Defendants argued that:◦ Common law did not continue after the handover◦ The PLC was illegitimate because its establishment
contravened with the Basic Law.◦ The Court therefore should not have the power to
adjudicate their case.
The Court held that PLC to be a competent legislature.
PLC was not the first LegCo PLC was necessary for the purpose of
implementing the Basic Law. The PC had its power derived from the NPC to
set up the PLC. The 1997 NPC Decision supplemented the 1990
Decision. The creation of the PLC was not contrary to the
Basic Law.
Pros: Uphold the supremacy of the NPC and the
Chinese Constitution Cons: The legislative effect of the NPC Decision
NPC is the “highest organ of state power” under Art. 57 of the Chinese Constitution
The Preparatory Committee’s power derives from the 1990 NPC Decision◦ “…matters relating to the preparation of the
establishment of the HKSAR and to prescribe the specific method for the formation of the first LegCo”
◦ Combined with the 1997 Ratification PLC is formed under Chinese national law
and was not subject to challenge by Hong Kong Courts
Art. 68 of Basic Law: “..shall be constituted by election…specific method…prescribed in Annex II”
Legislative effect of the 1997 Ratification A de facto amendment to the Basic Law Procedures for amending the Basic Law.
◦ Art. 159 of Basic Law: “The power to propose bills for amendment shall be vested in the Standing Committee of the NPC”
Decision vs Amendment?
Pro Ensure stability in Hong Kong Con Create uncertainties to the Legal System of
Hong Kong
If the PLC was held not legitimate: The Reunification Ordinance would not have
been in force Hong Kong Courts would not have the
authority to try cases Non-existence of the judicial branch and law
enforcement
David Ma: The Court does not have the authority to challenge NPC Decisions.
NPC could exercise authority in Hong Kong outside the framework of the Basic Law
In Ng Ka Ling, Chan CJHC: “…might be allowed the challenge the NPC…”
Stability vs Autonomy One country vs Two systems
Leung Mei-fun, The Hong Kong Basic Law: Hybrid of Common Law and Chinese Law (2006), LexisNexis
Yash Ghai, Hong Kong’s New Constitutional Order (2nd edition, 2001), Hong Kong University Press
Chan, Fu and Ghai, Hong Kong’s Constitutional Debate Conflict Over Interpretation (2001), Hong Kong University Press
Albert H Y Chen, The Provisional Legislative Council of the SAR, 27 HKLJ 1.
Johannes Chan, The Jurisdiction and Legality of the Provisional Legislative Council,27 HKLJ 374
Albert H Y Chen, Legal Preparation for the Establishment of the HKSAR: Chronology and Selected Documents, 27 HKLJ 405.
Peter Wesley-Smith, The SAR Constitution: Law or Politics?, 27 HKLJ 125.