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Provisional Legislature

Provisional Legislature. from the perspective of Chinese law and common law. Outline. Background Pros and Cons from the perspective of Chinese law Pros and Cons from the perspective of common law Conclusion. Background. The 1990 NPC Decision: Method for the formation of the First LegCo

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Provisional Legislature

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  1. Provisional Legislature from the perspective of Chinese law and common law

  2. Outline • Background • Pros and Cons from the perspective of Chinese law • Pros and Cons from the perspective of common law • Conclusion

  3. Background • 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

  4. Background • 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)

  5. HKSAR v Ma Wai Kwan David & Ors • 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.

  6. Legitimacy of the PLC • 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.

  7. From the perspective of Chinese law • Pros: • Uphold the supremacy of the NPC and the Chinese Constitution • Cons: • The legislative effect of the NPC Decision

  8. Supremacy of the NPC and the Chinese Constitution • 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

  9. Legislative effect of the NPC Decision • 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?

  10. From the perspective of common law • Pro • Ensure stability in Hong Kong • Con • Create uncertainties to the Legal System of Hong Kong

  11. Ensure stability in 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

  12. Uncertainties to the Legal System • 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…”

  13. Conclusion • Stability vs Autonomy • One country vs Two systems

  14. References • 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.

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