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.