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Although the formula of “One Country, Two Systems” has been implemented since 1997, it is still controversial in terms of the role of Hong Kong's final authority on judicial review under China's sovereignty. On the one hand, the power of final adjudication is vested in the Court of Final Appeal (CFA) in Hong Kong according to the Basic Law of the Hong Kong Special Administrative Region (HKSAR). On the other hand, under China's sovereignty, the constitutional role of the Hong Kong court in solving issues relating to Central Authorities within its jurisdiction is still controversial. This constitutional tension has been seen in many cases, for example in HKSAR v. David Ma Wai-Kan. This article examines the nature of Hong Kong's final authority on judicial review and its relationship with the NPCSC's authority over the interpretation of the Basic Law. It reveals that, in the context of Hong Kong under “One Country, Two Systems,” a dual structure of constitutional review has been formed: one is the judicial review of the Basic Law by Hong Kong courts at the regional level, and the other is the constitutional control of the Basic Law by the NPCSC at the national level. Furthermore, it suggests that each one should take a deferential approach so that a balance can be struck between “One Country” and “Two Systems.” In addition, it is necessary to develop some public channels to effectuate the mutual deference mechanism by showing their respective positions. To a certain extent, FG Hemisphere Associates LLC v. Democratic Republic of the Congo and Others has shown that such a mechanism is possible as Hong Kong's final authority on judicial review based on “Two Systems” is more likely to be reconciled with China's sovereignty backed by “One Country.”
On July 1, 2007, Hong Kong celebrated its tenth anniversary as a special administrative region of China. It also marked the first decade of its unique constitutional order in which Hong Kong courts continue to apply and develop the common law but the power of final interpretation of the constitution lies with the Standing Committee of the National People's Congress. This book is a collection of chapters by leading constitutional law experts in Hong Kong who examine the interpretive issues and conflicts which have arisen since 1997. Intervention by China in constitutional interpretation has been restrained but each intervention has had significant political and jurisprudential impact. The authors give varied assessments of the struggle for interpretive coherence in the coming decade.
An examination of China's accommodation of Western constitutional values, in the light of the pending return of British Hong Kong to China. The Joint Declaration which governs the return guarantees a continuance of these values, and this study looks at the resulting tensions between East and West.
In the years since it was established on 1 July 1997, Hong Kong's Court of Final Appeal has developed a distinctive body of new law and doctrine with the help of eminent foreign common law judges. Under the leadership of Chief Justice Andrew Li, it has also remained independent under Chinese sovereignty and become a model for other Asian final courts working to maintain the rule of law, judicial independence and professionalism in challenging political environments. In this book, leading practitioners, jurists and academics examine the Court's history, operation and jurisprudence, and provide a comparative analysis with European courts and China's other autonomous final court in Macau. It also makes use of extensive empirical data compiled from the jurisprudence to illuminate the Court's decision-making processes and identify the relative impacts of the foreign and local judges.
This book explores legal and constitutional issues in Hong Kong's relationship with mainland China through an analysis of the litigation on the right of abode of the children of Hong Kong residents who are born and live in the mainland.
"In the years since it was established on 1 July 1997, Hong Kong's Court of Final Appeal has developed a distinctive body of new law and doctrine with the help of eminent foreign common law judges. Under the leadership of Chief Justice Andrew Li, it has also remained independent under Chinese sovereignty and become a model for other Asian final courts working to maintain the rule of law, judicial independence and professionalism in challenging political environments. In this book, leading practitioners, jurists and academics examine the Court's history, operation and jurisprudence, and provide a comparative analysis with European courts and China's other autonomous final court in Macau. It also makes use of extensive empirical data compiled from the jurisprudence to illuminate the Court's decision-making processes and identify the relative impacts of the foreign and local judges"--
All states are challenged by the need to protect national security while maintaining the rule of law, but the issue is particularly complex in the China–Hong Kong context. This timely and important book explores how China conceives of its national security and the position of Hong Kong. It considers the risks of introducing national security legislation in Hong Kong, and Hong Kong's sources of resilience against encroachments on its rule of law that may come under the guise of national security. It points to what may be needed to maintain Hong Kong's rule of law once China's 50-year commitment to its autonomy ends in 2047. The contributors to this book include world-renowned scholars in comparative public law and national security law. The collection covers a variety of disciplines and jurisdictions, and both scholarly and practical perspectives to present a forward-looking analysis on the rule of law in Hong Kong. It illustrates how Hong Kong may succeed in resisting pressure to advance China's security interests through repressive law. Given China's growing international stature, the book's reflections on China's approach to security have much to tell us about its potential impact on the global political, security, and economic order.
Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.
When the British occupied the tiny island of Hong Kong during the First Opium War, the Chinese empire was well into its decline, while Great Britain was already in the second decade of its legendary "Imperial Century." From this collision of empires arose a city that continues to intrigue observers. Melding Chinese and Western influences, Hong Kong has long defied easy categorization. John M. Carroll's engrossing and accessible narrative explores the remarkable history of Hong Kong from the early 1800s through the post-1997 handover, when this former colony became a Special Administrative Region of the People's Republic of China. The book explores Hong Kong as a place with a unique identity, yet also a crossroads where Chinese history, British colonial history, and world history intersect. Carroll concludes by exploring the legacies of colonial rule, the consequences of Hong Kong's reintegration with China, and significant developments and challenges since 1997.
This book reviews the political development of Hong Kong before and after 1997, in particular the evolution of state-society relations in the last two decades, to analyze the slow development of democracy and governance in Hong Kong after 1997. This book is a most comprehensive analysis of the multi-faceted changes in Hong Kong in the last 20 years. The scope of changes analyzed included state functions and institutions, political changes such as party development and development of the Legislative Council, and social changes such as social movements, civil liberties, etc. It helps the reader understand the crisis of governance of Hong Kong after 1997, and the difficulty of democratic development in Hong Kong over the years. The book covers: changing state institutions in Hong Kong in the last few decades; party development in Hong Kong; the changing role and function of the legislature in Hong Kong; the evolution of social movement and movement organizational forms; media freedom, civil liberties, and the role of civil society; and theoretical discussions concerning governance problems and state-society relations in Hong Kong. Special emphasis is placed on how these changes brought about a new state-society relation, which in turn brought governance difficulties after 1997.