It also marked the first decade of its unique constitutional order in which Hong Kong courts continue to apply and develop the common law but the power of final interpretation of the constitution lies with the Standing Committee of the National People's Congress.
This book is a collection of chapters by leading constitutional law experts in Hong Kong who examine the interpretive issues and conflicts which have arisen since Intervention by China in constitutional interpretation has been restrained but each intervention has had significant political and jurisprudential impact.
The authors give varied assessments of the struggle for interpretive coherence in the coming decade. Interpreting Constitutionalism and Democratization in.
It is not uncommon for legislatures to enact laws or make resolutions based on a particular understanding of the constitutional instrument. A possible defence to not consulting the Committee for the Basic Law is that the SCNPC was engaging in August with decision-making pursuant to a procedure set up under its Interpretation of Article 7 of Annex I and Article III of Annex II to the Basic Law which was adopted on 6 April and following the terms of its Decision of 29 December which was said to have been adopted also pursuant to the same procedure and that procedure does not require consultation of the Committee for the Basic Law.
While I feel that this argument appeals to logic and reason, and some readers may share my view, they should, however, note that I make no assumption at the outset that the SCNPC regards itself as bound by the path it has chosen on a prior occasion and would not make the rules up as it goes on discharging the business of the State of the day. Two points need to be made. Again, one faces the reality that legislative intent is essentially what the SCNPC says it is, unless one can attempt to contradict what has been said with Basic Law drafting history and the proceedings of the NPC back in when the Basic Law was enacted.
A modest food for thought in this regard is that as a matter of substance, the election committee under the present Chief Executive electoral method and the nominating committee under a method for implementing Chief Executive election by universal suffrage are not comparable bodies in terms of purpose and function.
The former nominates and elects the Chief Executive. The latter only nominates candidates for the over 3 million eligible voters in Hong Kong to exercise their universal suffrage franchise. The second major consideration that Mr.
Li suggested that the election committee achieved balanced participation of all sectors and was therefore in conformity with the actual situation of Hong Kong. He claimed that such balanced participation has continued to be an objective when it comes to nominating candidates for Chief Executive election by universal suffrage and a nominating committee in line with the formation of the Election Committee for the Fourth Chief Executive would achieve that objective and fend off various risks during the election of the Chief Executive by universal suffrage.
The third major consideration relied on by Mr. Li Fei in support of Article II 1 of the 8.
This appears to be a preference based on an appreciation of public opinion and does not necessarily qualify as a major consideration, at least from the legal point of view. The other two restrictive requirements of the 8. The first places a maximum limit on the number of candidates that the nominating committee may nominate. The second requires each such candidate to have the endorsement of more than half of the members of the nominating committee. Li Fei also explained why they were to be imposed.
As to placing a maximum limit on the number of candidates that the nominating committee may nominate, Mr. Assuming that ballot overcrowding is a legitimate concern, prescribing by law a maximum number of candidates on the ballot through limiting the numerical range of candidates the nominating committee is very likely to be treated objectively as too sweeping a means to address the issue.
Overseas jurisdictions have many mechanisms to prevent overcrowded ballots. Some of those, such as a substantial filing fee or deposit, have already been introduced into Hong Kong. In practical terms, the costs and human efforts of running an election campaign in the whole of Hong Kong will be prohibitive to many. Pro-democracy Hong Kongers value the rule of law for its underlying rights-inspired and democratic significance, whereas pro-establishment individuals perceive the rule of law as a source of stability and prosperity, and as a conservation of the status quo.
This paper has sought to address the interplay between the social production of identity and the perpetuation of power structures in relations to the hegemonic discourse of law in Hong Kong, with reference to concepts emanating from Gramscian theoretical legacy, in particular ideology and hegemony. The construction of the Hong Kong identity is deeply intertwined with the emergence of the hegemonic myth of the rule of law, whose competing sub-discourses instrumentalised by the colonial and post governments, in an attempt to disguise coercion through consent, and increasingly by the thriving civil society characterised by a growing rights awareness, reflect the distribution of power.
It is essential to reflect upon these issues, especially in the context of the aftermath of the Chief Executive elections, where a pro-Beijing candidate was elected. Flowerdew, Critical Discourse Analysis in Historiography , , p. Klein, , p. Young eds.
Flowerdew, , p. Civil society versus Government: Politics through Competing Legal Discourses The parallel between the pre- and post-transitional administrations becomes unequivocal in the analysis of the discursive strategies in the context of protests and their repression. Jones, Lost in China? Articles similaires.
Intervention by China in constitutional interpretation has been restrained but each intervention has had significant political and jurisprudential impact. What can people do when a large-scale movement of civil disobedience has failed to create real change? Condition Brand New. New Hardcover Quantity Available: Ships with Tracking Number! On the other hand, Chan CJHC now Chan PJ did note, with considerable foresight, in Ma Wai Kwan David above a poten- tial tension inherent in the Basic Law by reason of it being an instrument drafted by individuals practising in the Mainland legal system for a special administrative region, whose continuing legal system was rooted in the common law legal system. Seller Rating:.