From Colony to HKSAR: Historical and Modern Development of HK’s Legal System

What is “one country, two systems?” High degree of autonomy Legislative, executive and independent judicial power, including power of final adjudication Preservation of existing legal system Capitalism and existing life style Protection of fundamental freedom “one country” perspective & “two systems” perspective

Outline of the relationship between the two legal systems Art 31 of Chinese Constitution Status of BL in Chinese Constitution? BL Art 17 BL Art 18 & Annex III BL Art 158 – Interpretation BL Art 159 – Amendment

Difference and Tension between the two systems Chinese jurisprudence v Common Law Final adjudication v Final interpretation

The Rule of Law Dicey An absence of arbitrary power on the part of the State Equality before the Law Supremacy of ordinary law Formal equality and formal justice

The Rule of Law Joseph Raz law should be prospective rather than retrospective laws should be stable and should not be changed too frequently there should be clear rules and procedures for making laws independence of the judiciary natural justice - open and fair hearing courts should have the power to review the way in which the other principles are implemented courts should be easily accessible discretion of the crime preventing agencies should not be allowed to pervert the law

The Rule of Law Department of Justice, “The Legal System in Hong Kong” 2006 The Principle of Legality Equality Before the Law Independence of the Judiciary Control of Discretionary Power

Right of Abode Ng Ka Ling v Director of Immigration (CFA) Facts? Issue? Constitutionality of amendment to Immigration Ordinance BL Art 22(4) and Art 24(2)(3) Review of NPCSC act Clarification by CFA Interpretation by NPCSC Significance: Independence of Judiciary? Finality of Judgment?

Sally Aw Facts? Issue? Equality before the law (BL Art 25) Explanation by Secretary for Justice “public interest” Significance: Favouring rich and powerful in society? Rule of law? Independence of Secretary for Justice?

Falun Gong Status of Falun Gong in PRC and HKSAR Yeung May Wan v HKSAR (CFA) Facts? Issue? Freedom of Assembly, speech, religion FLG members’ conviction quashed Significance: rule of law Independence of judiciary Vigorous legal protection of human rights Equality of all before the law

Right of Free Assembly Public Order (Amendment) Ordinance days notification Ground of objection to public demonstration: National security Ordre public Public order Leung Kwok Hung v HKSAR 2005 (CFA) Facts? Issue? Held: requirement of notification - constitutional “Ordre public” too broad and imprecise to satisfy the test of legal certainty – unconstitutional Restriction must be no more than necessary to maintaining public order Significance: Protection of the right to assembly?

Article 23 National Security (Legislative Provisions) Bill Issue? Freedom of speech, assembly, procession, demonstration v national security Suppress those who are perceived the challenge the regime? Trust?

Conclusion J.Chan: “one country, two systems” is a journey without destination Anne Cheung & A. Chen: “journey in the quest of the Rule of Law has been confusing so far, and the result may be disheartening in some respects.” Secretary for Justice, Wong Yan Lung SC Interpretation only works prospectively Central authorities determined to do what is best for HK China very actively promoting rule of law, admits its weakness and improving Trust between HK and Central Authorities with open mind is crucial to successful implementation of “one country, two systems”

Karen Kong 2007 Adopted from Puja Kapai