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The powers and functions of the Legislative Council include:
⑴ To enact, amend or repeal laws;
⑵ To examine and approve budgetsintroduced by the government;
⑶ To approve taxation and publicexpenditure;
⑷ To receive and debate the policyaddresses of the Chief Executive;
⑸ To raise questions on the work of thegovernment;
⑹ To debate any issue concerning publicinterests;
⑺ To endorse the appointment and removalof the judges of the Court of Final Appeal and the Chief Judge of the HighCourt;
⑻ To receive and handle complaints fromHong Kong residents;
⑼ To impeach the Chief Executive;
⑽ To summon, as required when exercisingthe above-mentioned powers and functions, persons concerned to testify or giveevidence.
Under the model of executive dominance, the legislature of Hong Kong is designed as an organ with the role ofcooperation with the executive authorities. It is indeed a difficult task forit. In the parliamentary system, the relationship between the legislature andthe cabinet is a combined one. The government relies on the relevant majorityat the parliament. And this is the main reason why the parliament must supportthe government. However, we cannot see this kind of combination in Hong Kong between the two bodies. Neither the ChiefExecutive nor the executive authorities gain their seats in office and powersthrough the sustenance of the Lego. Only in scarce occasions would the ChiefExecutive be put into the procedure of impeachment by the Lego. Of course, thegovernment officials must answer the questions laid by the members of thelegislature. In order to maintain the efficiency of the administration, theBasic Law has to make the legislature at the corner of the spot. Therefore, theLaw provides that the legislators may introduce bills which do not relate topublic expenditure or political structure or the operation of the government,and that the written consent of the Chief Executive shall be required beforethose bills relating to government policies are introduced to the Lego. Under thismodel, the legislative house seems much like a chat room in aspect ofgovernment control.
The most important power of the legislature is the weapon ofimpeachment. It is only formulated for the control of the Chief Executive,because he or she is the soul with importance and capacity to influence thedeveloping trends and prosperousness of Hong Kong.There are four major steps to do so. First, if a motion initiated jointly byone-fourth of all the members of the Legislative Council, that is, 15 membersor above, charges the Chief Executive with serious breach of law or neglect ofduty, he or she should resign from office. If he or she refuses to resign, thesecond step of the procedure would begin. The legislature may pass anothermotion for investigation, give a mandate to the Chief Justice of the Court of FinalAppeal to form and chair and independent investigation committee, which shallbe responsible for carrying out the investigation and reporting its findings tothe Lego. If the report of the committee shows that the evidence sufficient tosubstantiate such charges, it would step into the final action of theprocedure. The Council may pass the third motion for formal impeachment by atwo-thirds majority of all its members and report it to the Central Government.The final step is the Central Government decides whether the Chief Executiveshould be removed from the office or not.
#a#4. The Judiciary#/a#The judiciary of Hong Kong is composedof the Court of Final Appeal, the High Court (comprising the Court of Appealand the Court of First Instance), several district courts, magistrates'' courtsand other special courts.
Before the regress to the motherland, Hong Kongwas under the tradition of common law. Its legal and judicial system is verydifferent to that of the Mainland. After July 1 1997, to fit for the reality ofsovereign regression, the judicial system has been changed mainly in threerespects.The first change occurs on the power of the final justice, which has been transferredfrom the British Judicial Committee of Privy Council to the Court of Final Appealof Hong Kong. It is said that among the public authorities only can thejudiciary entirely keep its position of independence. But it is amisunderstanding to the word "final". The final appeal in the contextof the Basic Law means that the decisions or the judgements made by the Final Appeal Courtwill not be allowed to appeal furthermore, and that there is no any otherjustice above this Court. But the judges of the Court cannot vitally decidewhat the legal basis for their final decisions and judgements finally is. AsArticle 158 of the Basic Law says, the power of interpretation of the BasicLaw, the highest legal norm for justice, belongs to the Standing Committee ofthe NPC. The power of interpretation of the Hong Kongcourts comes from the grant of the Standing Committee. If the courts of theRegion, in adjudicating cases, need to interpret the clauses of the Lawconcerning affairs which are the responsibility of the Center, for example theforeign and defensive affairs, or concerning the relationship between theCenter and the Region, and if such an interpretation will affect the judgmentswhich are not appealable, seek an interpretation of the relevant clauses fromthe Standing Committee through the Court of Final Appeal of the Region. Thecourts of the Region must follow the interpretation of the Sanding Committeefor their decisions. Thus, the justice of Hong Kongis not fully and absolutely final and independent from the Center.
The second change happens at the area of judges'' construction. Underthe British supremacy, most judges on chair were British or those foreignersfrom the ex-colonies of Great Britain. Now, according to the Basic Law,the Chief Justice of the Final Appeal Court and the Chief Judge of the High Courtmust be Chinese citizens who are permanent residents of the Region with noright of abode in any foreign country. The rest judges could be foreignersrecruited from other common law jurisdictions, and could be Chinese citizenswith or without right of abode in foreign countries, except those Chinese whoare interior ones of the Mainland because of their legal educationalbackgrounds on the socialist laws or the continental laws. Apart from thestanding judges, the Final Appeal Court can temporarily invite judges from othercommon law countries to sit on the Court and to hear the cases. There are tworeasons why foreign residents and the Chinese with right of abode, even thosenon-residents, except for the Chief Justices of the Final Appeal Court and the High Court,could sit on bench. One is that the Chinese judges are not very familiar withcommon law precedents because of their short training and less experiences oncommon law. Another reason is that the judges are in essence the servants oflaw, not of politics. What the justice pursuits is equality under the law, soit needs not to put strict restraints on the qualifications. The only restraintto those foreign judges is to pursuit to the rule of law which is everywherethe same requirement to a qualified judge. The judges will take office afterthey swear to be loyal to the Basic Law.
The third change focuses on application of the laws of Hong Kong. Before July 1 1997, all the British statutesand case law, having higher effect than Hong Kong laws, were certainlyapplicable at the courts of Hong Kong. It isnow the Chinese laws applying to the cases, such as the Basic Law and theChinese laws listed in Annex III. What the courts should obey are thosenational laws clearly inscribed in Annex III. However, Article 18 of the BasicLaw provides that when the Standing Committee of the NPC decides to declare astate of war or, by reason of turmoil within the Region which endangersnational unity or security and is beyond the control of the government of theRegion, it may at the same time decide the Region is in a state of emergency,while the Central Government may issue an order applying the relevant nationallaws beyond the list of Annex III to the Region. Of course, this is a necessaryexception to the normal situation which will rarely happen. Therefore, thisprovision has a nature of safeguard to sustain the highest authority of theCentral Government.
Finally, apart from the formal legal resources, the precedents of othercommon law jurisdictions may be used as references to the sentencing, butwithout the sanction force to the courts. If a court makes its reasoning out ofa precedent of the foreign court, the relevant sentence would be overthrown bythe higher court. But if this is done by a higher court, how can it be corrected?This is the problem having not been answered. In the light of commonlaw tradition, every common law precedent can be cited by common law courts ofother countries. If it is itself a precedent, the problem will be replayed bythe NPC. And even the NPC couldn''t restrain Hong Kong judges change theprinciples containing in the foreign precedents into the principles of Hong Kong case law.
#a#IV. THE SUCCESSES AND THE PROBLEMS OF #/a#HONG KONG MODELThe Basic Law has been implemented in Hong Kongfor more than two years. It appears that it is successful at the whole, howeverthere must be some problems coming forth. The One Country, Two SystemsPrinciple, the Basic Law, and the Region itself are all new political phenomenaboth for China.Here we will consider, under the Basic Law, the strengthened position, the democraticdevelopment, the present problems of Hong Kong,and the prospects of the Basic Law itself.
#a#1. The Strengthened Position of #/a#Hong Kong in the Financial Stormunder the Basic LawThe return of Hong Kong to the control of China is itself a successfulexample of the sovereign transition. It ends in part the humiliated history of China since theOpium War in 1840. To the Chinese people, including those live in Hong Kong,the return of Hong Kong means a symbol of anew begin of reunification of the Chinese nation. It must strengthen the forceof China as well as raise theflexibility of Hong Kong on capacity to meetthe sudden events around the world. Furthermore, it must lead China to go on inthe way of rule of law. The fulfillment of return was not a conquest by usingforce, but a negotiation under some principles. The result of it is the BasicLaw of Hong Kong, which is a bond not only to the Region, but also to theCentral Government who issued it, has become a two-edged sword. Under thecolonist-like conditions, Hong Kong could nothave such a position of law. Generally speaking, Hong Kongis stable, prosperous and vigorous now after the return.
The success of Hong Kong depends onthe endeavor of its people, whilst also on the environments it exists. Afterreturn to China, Hong Kong gains a nearer backer for its development. Inthe financial storm throughout East Asia, Hong Kongstays firm in it relying on its well-built banking system and the fiscal supportfrom the Central Government. Just at the beginning of the Region government,the financial crisis has flooded in Hong Kong; the Secretary of FinanceDepartment of Hong Kong went to Beijingto seek support from the Center. The Center confirmed the countermeasures the Hong Kong government resorted to. In fact, Hong Kong is one of the countries where the crisis hashad the mild influences to the economy and the society. It is in some respectsbecause of the strong back of the Central finance. It’s the common duty of theCenter to ensure the stability, politically as well as economically. And the contextof the Basic Law presumes such a relationship between the Center and theRegion, which would become a political convention.
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