Hong Kong's Constitutional Debate: Conflict over Interpretation

Hong Kong's Constitutional Debate: Conflict over Interpretation

Hong Kong's Constitutional Debate: Conflict over Interpretation

Hong Kong's Constitutional Debate: Conflict over Interpretation

Synopsis

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. The litigation int

Excerpt

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 . . .

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