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#a#2. Democratic Development of #/a#Hong KongBefore July 1 1997, Hong Kong was apiece of Chinese territory under the reign of British Crown. The Britishmanaged Hong Kong by means of colonialistmethods. By a well-known reason, the colonialist governing needn''t any form ofdemocracy. Hong Kong was a free community, butnever a democratic one. If the colonialist rule could have been sustainedfurther, the democracy in Hong Kong would benonsense and inconvenient to the British. Therefore, in more than one hundredyears, there was no any kind of democratic election happened in Hong Kong. Only when was the British affirmed that theirrule in Hong Kong would be soon ended, they then reluctantly introduced theelections into Hong Kong in 1985. This is thebeginning of the democratic development of Hong Kong.There were four general elections formed in Hong Kongfrom 1985 to 1997. In the election of 1991, the direct election system wasfirstly brought into Hong Kong, which made aprogression of democracy. About two thirds of the seats in the LegislativeCouncil were allotted in this direct selection catalogue.
After the sovereign return of Hong Kong to China, the first parliamentaryelection was held in the Region on May 24 1998. Compared with the voting rateof 35.8% in the 1995''s election, which was pursuant to the electoral model thathad been brought up, by the last governor of Great Britain, Sir Chris Patten,in a Political Reforms Plan which turned the indirect part of the seats byfunctional constituencies into the actually direct elected part of thelegislature, the election of 1998 had a higher rate of direct votes up to53.29%. This was achieved even atthe weather of a big rainstorm. The fact has illustrated that the people of Hong Kong is much ardent to the democratic development oftheir own society, whereas they didn''t care very much to the democracy set upby a colonialist government. The main targets of thefoundation of the Region are to actualize and corporealize the basic policiesof the Center for "One Country, Two Systems", "Hong Konggoverned by the residents themselves", and "high degree ofautonomy". That the Hong Kong people themselves shall govern Hong Kong doesn''t mean an oligarchic rule, or an elitistrule. What the Hong Kong people expect is arule by the majority. It is why the voting rate was so high than the mostpredictions of the public opinion polls held before the election day. Because of the provisionsof the Basic Law, that the public occupations are elected will become the routinesof the political life.
Of course, there were still other elements affecting the process ofelection and its voting rate, such as the political attitudes of the voters,the needs to make the balances between the powers, and the excellent organizingworks by the government, etc.
#a#3. Human Rights Protection in #/a#Hong KongAs mentioned above, before the establishment of the Region, Sir ChrisPatten, the last governor of Great Britainin Hong Kong, took several steps to make somebarriers or troubles for the coming Region. They included to pass a bill ofhuman rights, to give fifty thousand Hong Kongfamilies the right of abode in the Kingdom, to raise a political reform plan,and so on.
To protect human rights of the people is the persistent standing on theproblem of human rights when drafting the Basic Law. After an all-roundconsideration, the draft of the Basic Law had been contained a lot of articleson the rights for the residents of Hong Kong. But,just before the draft would be passed at the National People''s Congress, theBritish submitted to the Chinese a draft of Hong Kong declaration of rights onMarch 1990, to turn the International Covenant on Civil and Political Rightsinto a Hong Kong law. And on June 5 1991, thedraft passed the Lego of Hong Kong as the Hong Kong Bill of Rights.
The ChineseGovernment protested such a measure having been adopted by the British, not forthe Bill of Rights itself, but for the attitude and manner of the action. Thereasons of objection are enough to deny the effective force of the Bill in thefuture Region. First, the Bill would affect the implementation of the BasicLaw, for there contained articles similar with those in the Basic Law, whichmight make some misunderstanding between two laws. Secondly, the passing of theBill procedurally breached the Sino-British understanding on the arrangementsfor the smooth transit of Hong Kong, because according to the understanding itrequired the negotiations between two sides for any effective result ofarrangement for Hong Kong. However, if there is no the third reason, the twoabove won’t affect the implement of the Basic Law. The crucial point of passingthe Bill was that it contained the clauses with conflict effect to the BasicLaw, which made the Bill probably in a legal position higher than the Law. TheArticle 3(2) of the Ordinance for implementation of the Bill reads: "All pre-existing legislation that does not admit of a constructionconsistent with this Ordinance is, to the extent of the inconsistency, repealed". Moreover,Article 4 even provides that all legislation enactedon or after the commencement date shall, to the extent that it admits of such aconstruction, be construed so as to be consistent with the InternationalCovenant on Civil and Political Rights as applied to Hong Kong. These two articles is called as the “overriding clauses” that theireffects would be higher than other laws in Hong Kong. This might make therehave been two highest laws in Hong Kong and the Basic Law might have been bypassedby the courts of the Region in cases concerning with the rights of theresidents. This kind of clauses in the Bill inevitably was denied by theChinese Government. Both Article 2 of the Annex II of the Joint Declarationbetween Chinese and British governments as well as Article 8 of the Basic Lawprovide that the laws previously in force in Hong Kong shall be maintained,except for any that contravene the Basic Law and subject to any amendment bythe legislature of the Region. Following to these legal norms the StandingCommittee of the NPC passed a resolution handling with the legal force of thelaws of Hong Kong before July 1 1997. Theresolution declared invalid of three clauses of the Bill when the big day ofreturn comes.
In fact, thequestion of the Hong Kong Bill of Rights is not simply the legal effect of it.Behind the event we can find out the political struggle on the matter of Hong Kong. The human rights protection has been long as afundamental value of the Hong Kong society.And the Central Government through the Basic Law has solemnly promised that thefuture Region government will protect the given rights of the residents of Hong Kong. The last governor wanted to use the Bill as apolitical tool or weapon to fight against the Chinese Government or to maketrouble on the powers transferring. The countercharge by the Chinese Governmentis not surprised. It should point out that the battles between two governmentsactually have negative impacts to Hong Kong.The Center would be always alert to any event occurred there, no matter is itan important one or a tiny one. This is not certainly good to the degree ofautonomy.
#a#4. The Matter of Judicial Review#/a#Traditionally, asin the English legal system being, the Hong Kongcourts under the governing of British had no power to check the statutes issuedby the legislature for their effectiveness. According to the principle ofEnglish parliamentary supremacy, as A. V. Dicey stated that no person or bodyis recognized by the law of Englandas having a right to override or set aside the legislation of Parliament ofEngland,the Hong Kong courts hadn''t the explicit powerof judicial review on laws of the legislature. However, is it still thediscipline for the Hong Kong courts to obeyunconditionally the laws of the Legislative Council, when now it has aso-called written constitution for the Region? Or if does the Lego have aposition as the English Parliament over the judiciary?
Any kind ofjudicial review to the laws in the world should be set up upon a writtenconstitution, the supreme norm of the land. The legal position of theLegislative Council is not, under the Basic Law, supreme. When the courts of Hong Kong have the duties to watch what the Basic Lawmeans at a special instance, they obtain logically the right to review thestatutes of the Lego to check their words and meanings. And when the courtsfind out that there are conflicts between the laws they are surveying and theBasic Law, the Law will have the authority over the laws. Therefore, theLegislative Council cannot enjoy the status as the English Parliament can. Andunder the Basic Law, Hong Kong courts have gained the power to review thestatutes of the legislature.
But that doesn''tmean that a written constitution must be protected by means of judicial reviewin Hong Kong. The main reason would be the authority of the National People''sCongress, which is over the authorities of, not only the laws and the courts ofHong Kong, but also the Basic Law. The authority of the Congress is the highestone all over Chinese territory. This status of the Congress gives it the powerto supervise the implementations of all laws and legal documents for theirconstitutionality. And the other organs in China have no right to challenge theauthority of the Congress. The Congress thus has the highest authority toprotect the Basic Law not to be violated.
The supremacy ofthe Congress''s authority and the review power of the Hong Kong courts have beenfound to be involved into an awkward contradiction. On January 29 of this year,the Court of Final Appeal of Hong Kong delivered a judgment on the case NgKa Ling and Ng Tan Tan v. the Director of Immigration, in which the Court assertedthe appellants had the rights of abode to living in Hong Kong as permanentresidents. Moreover, the Court expressed such an opinion,
What has been controversial is the jurisdiction of thecourts of the Region to examine whether any legislative acts of the NationalPeople''s Congress or its Standing Committee (which we shall refer to simply as"acts") are consistent with the Basic Law and to declare them to beinvalid if found to be inconsistent. In our view, the courts of the Region dohave this jurisdiction and indeed the duty to declare invalidity ifinconsistency is found. It is right that we should take this opportunity ofstating so unequivocally.
According to theintention of the justices, the Basic Law, as a "written constitution"for Hong Kong, is the highest norm in Hong Kong to which they must pursuant.And it is the only command they must obey. Because the Basic Law is a basicstatute promulgated by the National People''s Congress, its legal effectivedegree is higher than any other legislative acts except for those made by theNPC which have higher effect than the Basic Law. It is the duty and province ofthe Court to say what the Law is. If the Court finds laws, either passed by thelegislature of Hong Kong or by the Standing Committee of the NPC, in oppositionto the Basic Law, the Court ought to obey the Basic Law and should clarify thatthe laws repugnant to the Basic Law, no matter from which level of the lawcomes. Therefore, the Court has a right to declare invalid of such acts andlaws when it finds they are inconsistent with the Basic Law. The Court wantedto establish the jurisdiction of review through this case.
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