IRAC Issue, Rule, Application, Conclusion Rights Exclusive BL rights right of abode; social welfare; travel o To restrict: courts

ts interpret these rights however they please Parallel rights speech; assembly; equality Exclusive BORO rights useless? government picks and chooses which ICCPR rights to incorporate in HK Young: A 39 doesnt directly apply ICCPR rights in HK it is applied only through the back door. A 39 BL ICCPR implemented in HK laws Restrictions only if prescribed by law To restrict a right o Prescribed by law o Proportionality test Is the restriction rationally connected to a legit goal? Are the means used no more than necessary to achieve the goal? Gurung Kesh v Director of Immigration Lapsed VISA upon returning to HK based on S11(10) Immigration Ordinance A 39 BL right to travel an exclusive BL right restriction doesnt conflict with ICCPR; right to travel not ICCPR right Here, prescribed by law but not ICCPR right Freedom of Assembly Close to freedom of speech and association. Popular mode of expression no price and expertise, assembling in large groups provides visual means to support your cause often means for minorities to vindicate views that would otherwise be castigated by majority. Content based restrictions speech censorship Time and space restrictions doesnt attempt to restrict speech, but can be used as a proxy to content censorship Restrictions made by police should be content neutral A 27 BL parallel rights freedom of expression, speech, assembly, demonstration Yeung May Wan v HKSAR Freedom of expression give generous interpretation. Didnt notify police of gathering because they had less than 30 people. Charged with: o obstruction of public place; CA quashed charge their actions cannot be constituted as an unreasonable obstruction

o doing an act where obstruction might accrue to public space; CA quashed charge obstruction cannot be defined so narrowly that constitutional rights are excluded o willfully obstructing a police officer; and assaulting police officer CFA if the arrest for the charges were unreasonable to begin with (that there must have been a reasonable suspicion of guilt), the law says citizens are entitled to use reasonable force to resist arrest (A28 BL prohibits arbitrary arrest) Leung Kwok Hung v HKSAR Demonstration of over 30 people Leung was charged for failure to notify o Notification requirement was constitutional, allows police to facilitate demonstrations S13A Public Order Ordinance police commissioner could object to demonstration if it goes against national security, public safety, public order, or the protection of rights and freedoms Meaning of Public Order (Ordre Public) center of attention o Too wide discretion for commissioner without indication of scope of that power. Interpretation of this should be left to the courts, not the executive o Clause struck out but it is also important for commissioner to have a degree of flexibility Appeal dismissed because the charge was on failure to notice, not on the issue of whether the commissioners power was constitutional Commissioners discretion on public order (ordre public) unconstitutional CFA maintains that the proportionality test is important when it comes to restricting fundamental rights HKSAR v Au Kwok Kuen Private property demonstration Some private premises can be open to demonstration o Quasi public places Town Hall o Where private premises takes on public qualities Right to private property trumps the right to assembly Freedom of Expression HKSAR v Ng Kung Siu Flag Burning freedom of expression other avenues can be used to convey the message flag burning unnecessary Public Order (Ordre Public) is legitimate reason for restricting this right o PRC just resumed sovereignty, it is necessary for national unity and territorial integrity

o Pojen as time goes on maybe this goal will face and it may be unjustified to restrict flag burning Only one mode of expression was banned, there are other avenues National Flag Law enshrined in BL Annex III, the Flag Ordinance is only a localization of the National Law cannot burn flags anymore?

Law Society of Hong Kong v A Solicitor Solicitors rules provides that a solicitor has to conduct themselves appropriately Solicitor argued that this law contravenes his freedom of expression o But the Solicitors Rules isnt even a law o Should be left to the Society to regulate solicitors conducts Hard to draw the line on solicitors conducts to determine constitutionality but since Society seeks to regulate their behaviour, matter best left for them Wong Yeung Ng v Secretary of Justice Contempt of court media stalking judge criminal offence Mens Rea and Actus Reus intention to undermine due administration of justice o Court decided there was real risk of undermining administration of justice o Real risk of causing the public perception of it being undermined Test for whether or not there was contempt o Examined the statements published, timing, size of audience, nature, impact of their influence o Whether administration of justice would be effected by this act Dr Kwok Hay Kwong v Medical Council of Hong Kong Restrictions on Doctors advertisements restriction of free speech argument Certain restrictions ruled to be contrary to freedom of expression o There must be less intrusive means of dealing with restriction on advertising other than total ban o No good reason for limiting services to 5 items o Disciplinary measures on doctors who violate rules are a disproportionate response Secretary of Justice v Ocean Technology Radio broadcast notification rule prior to broadcasting failed to notify You cannot use a constitutional challenge as a collateral defense in criminal trials o If you want to challenge a statute, seek judicial review Problem: R v Wicks was followed in this case. o You cannot raise a collateral defense if the legislation doesnt allow you to. But In Wicks, it was a by-law, in Ocean Tech, it is the statute itself. Inconsistent with Leung Kwok Hung should have followed Leung proportionality test o Both cases similar: non notification + criminal cases

Equality Rights Does the law have to endorse certain rights? Do we look at form or substance of the case when determining discrimination within the law? Gay marriage: procreation v sterile, old, and people who dont want kids; religion v religious freedom; slippery slope argument group marriage and incest ***Leung v Secretary of Justice Crimes Ordinance S118C indirect discrimination against gays homosexual buggery Legal age of sex 16; legal age for buggery 21 only form of sexual intercourse for gays indirect discrimination although buggery law applied equally o Form vs Substance Indirect discrimination courts guardian of minority rights age of consent 16 so gays must be able to have sex at that age too S118C infringed right to privacy and equality o Anal sex only form of sex available for gays Proportionality test o Denying minority class the right to sexual expression in their only available way disguised discrimination o Infringement not justified. Not legitimate goal fails part A of the test. Although law seeks to protect minors from sexual activities, for health considerations, and to protect vulnerable people from gay activity, there is no medical reason for why the age limit should be set at 21. Secretary of Justice v Yau Yuk Lung Public buggery in car Crimes Ordinance S118F prohibits public buggery Heterosexual law of public indecency is a Common Law charge. For gays, it is a statutory charge. There is differentiation. S118F striked down, gays will be subject to Common Law offense as well. Proportionality Test o Differential treatment based on sexual orientation; heterosexuals were not subject to comparable liability. o No genuine need for this kind of treatment fails part A of the test ***Cho Man Kit v Broadcasting Authority RTHK broadcasted documentary on gay people interviewees expressed hopeful view of gay marriage Broadcasting authority o Said that the content was not impartial o Said that the program should have been broadcasted at a later time Authoritys finding constituted: discrimination; infringed freedom of expression Content found not to be impartial

o Show was not about gay marriage, it was being impartial. It was about the aspirations of gays. o To achieve impartiality, you just need to present it in a non discriminatory nature, need not counter every point with an opposite view. It should have been broadcasted at a later time o Legitimate restriction of freedom of speech to protect sensibilities of young viewers they lack maturity to understand the issues avoid confusion and prejudice a lot of children watches TV during the original timeslot

Equal Opportunities Commission v Director of Education Affirmative action institutionalized unfairness Scaling system boosted boys grades and lowered girls grades; Banding system gave higher requirements for girls than boys for reaching top band; Gender quotas maintained fixed ratio of students denying better qualified girls D argued that this method is used to neutralize girls advantages. Even if it is discriminatory it is justified under S48 for ensuring equal opportunity. Decision o Individual rights cannot be undermined by generalizations even from statistics o Boys and girls are sitting for the exact same tests skewing results on the basis of gender is unequal treatment o S48 states that measures to bring equal opportunity must be temporary but the existing system has been around for a long time. o S48 fails proportionality test it satisfies A but not B. It is not rationally connected to the goal because it institutes disadvantage for ALL girls, it is not proportional because only a few boys do better than girls above 70th percentile, has not been shown that coed works best if gender quota is fixed. ***Secretary of Justice v Chan Wah Village election exclusion of non indigenous villagers infringement of right to participate in public affairs (BORO right) Chan was denied to vote at a village and Tse was denied to stand for election A40 BL protects indigenous way of life but cannot be used to deny indigenous men right to vote and political rights. A40 read very narrowly. A21 BORO right to participate in public life. Decision o For Chan, he was a non indigenous man married to an indigenous woman. o Exclusion from voting was gender discrimination against men. Deferral Not easy to see when courts will defer cases.

They are not always suited to give an answer to certain matters because they dont specialize in it Should judges make moral judgments or only when it is within their expertise? Exclusive rights easier to defer than parallel rights

Fok Chun Wa v Hospital Authority Discrimination based on resident status woman married to HKID holders cannot get hospital benefits Mainlander wanted to give birth in HK, charged a large amount of money Two types of discrimination o Gender, race, equality courts can strike these laws down o Social welfare no sense for courts to strike it down Only residents can get welfare. Social and economic policy courts have to defer it not proper for courts to strike down. Yau Man Fai v Director of Social Welfare HK resident worked in mainland, fired rejected HK social welfare right to equality Requirement is that you need to be a continual resident for 1 year before applying for welfare Decision o Contravened his right to equality and freedom of movement o No deference in this case because there is no societal debate compared with Fok about the position of this law striked down the law Foks Test Two types of discrimination o Gender, race, equality courts can strike these laws down Freedom of movement in this case o Social welfare no sense for courts to strike it down Kong Yun Ming v Director of Social Welfare Right to welfare and social assistance exclusive BL right A36 BL Mainland wife of HKPR came to HK, husband died, seeks welfare without satisfying the 7 year requirement, argues it contravenes her BL right to social welfare Exclusive BL right no need for proportionality test deferred to Social Welfare Dept. o The right to change the social welfare system lies with the government and nobody else Courts have no expertise in this matter deferred Freedom of Religion A32 BL Freedom of religion. A141 BL Religious institutions property rights.

Size of the religion matters. When does a cult become relgion?

Chu Woan Chyi v Director of Immigration Falun Gong members refused entry due to immigration watchlist Director thought they were a security risk, forced used to put 3rd and 4th appellants on flight back to Taipei Relevant immigration watchlist data deleted and not submitted to court Judicial review dismissed Whether they were entitled protection of the fundamental freedoms of BL o Falun Gong is a religious movement under BL o But 1-4 defendants did not have a right to enter HK under BL. ICCPR and BORO did not apply. Director not constrained by principle of proportionality in deciding to give permission to entry or not. They were NOT denied entry due to religious belief o Director not obliged to disclose source of intelligence to applicants for HK security o Weight of evidence suggested that religious affiliation was entirely incidental Even with entry permits to HK, they still needed permission to land and director had this discretion. Force applied for their removal was not excessive and inappropriate. Their resistance prompted some form of compulsion used against them. Catholic Diocese v Secretary of Justice Amendments to Education Ordinance in violation of A136BL right for community organizations to run schools on their own exclusive BL right A141 BL Educational institutions retain autonomy and religious institutions can continue to run schools, hospitals, etc. o Catholics had 100% discretion when running schools before, now they have 60% o Amendments changed their management and now non Catholics can work at these schools o Board of Education has the right to make this decision. With the progression of science and technology, the government needs them to conform to higher standards. Just because they used to be able to run it their own way, it doesnt mean that they are exempt from advancements. o The government in light of new technology can force new and improved processes to run these schools. o The amendments applied to ALL religious organizations so it is not discriminatory. It helps level the playing field. o If all religions can run their own schools, it wouldnt be fair to the religions that lack the financial resources. It would be detrimental to the kids in religious schools with fewer resources. Public policy argument.

So even if we allow it to run by itself, it would comply with A136. But it would be in violation of other BL rights, such as right to equality, which is an even more important right (parallel).

Post 1997 Hong Kong Challenge to Legality of PLC: HKSAR v Ma Wai Kwan First major constitutional law case argued that common law offense had not survived handover so he cannot be charged with the common law offense o Argued that Reunification Ordinance was enacted by PLC and that it was not a legitimate body. Therefore Reunification Ordinance was not legal. A160 BL already says that previous laws in force including the common law shall be maintained except if it contravenes the BL. This means that there need not be laws adopting previous laws in force. Nothing needs to be done to enable the common law to have continued effect post 97. Reunification Ordinance involves the general adoption of the common law post 97. It does not need to have a specific purpose of preserving the common law offence as long as it imports all common law previously in force. To some extent it concerns whether or not the court has the power to review the validity of the Reunification Ordinance. o To determine this, the courts had to figure out another issue. Whether or not the HK courts have jurisdiction to examine the acts and decisions of the sovereign which is the NPCSC. There are two lines of reasoning in this case to arrive at the same conclusion: First line of reasoning o A8, 18, 160 BL That the BL imports all the laws previously in force so that he can be charged with the common law offence; or o A19 BL Reunification Ordinance has a provision that preserves the common law. If the courts go with the first line of reasoning, the second line of reasoning would only be obiter. If both lines of reasoning are used to arrive at the decision then they are both ratio. The second line of reasoning in this case is also part of the ratio because the court relies on both lines of reasoning. The second line of reasoning o The extent to which the Hong Kong courts can deal with Acts of the central authorities o Article 19 of BL says the Hong Kong courts had no power to do things which they could not do before 1997. Their limits are still applicable post 97. Before 97, HK courts had no power to review any acts of Parliament and acts of the Sovereign. So now, continuing this, they still have no power to review acts of the NPCSC. The HK Reunification Ordinance has a provision to continue the common law. This Ordinance was established by PLC. PLC was established by the Preparatory Committee of HKSAR Prep Committee was authorized by NPCSC

o In 1990, the NPC already said that there would be a Prep Committee for the establishment of HKSAR to prepare for the handover. They also decided on the first LegCo of HKSAR but PLC was not part of the original plan. The defendants argument is that there was not authorization of the PLC because during 1990, PLC was not part of the original plan of the handover. The PLC was set up not by NPCSC, but it was set up by Prep Comm. The question now is that since PLC was not set up by NPC or NPCSC, can the courts still verify the validity of PLC and the Ordinance? The court decided that PLC was lawful and not contrary to the BL. They adopted a purposive approach. If they adopted the literal interpretation, they would not have found any words which authorized the PLC. But in reality there was supposed to be a through train, but the derailing was unanticipated so the courts were faced with a new situation which arose. They adopted a purposive interpretation and said the establishment of the PLC was necessary or else there would be a vacuum immediately after the handover and there would be no legislature. Amendments to Immigration Ordinance by PLC on July 9, 1997/ Right of Abode cases/ Autonomy of Hong Kong and Central Government Ng Ka Ling and Chan Kam Nga The Basic Law changed the existing legal position of children born in the Mainland. Before 97 they had no right of abode in HK but after 97 they could apply to migrate into HK. They would have to queue up to migrate. After 97 they had right of abode. Ng Ka Ling is a judicial review case o Laws were being challenged as unconstitutional o Immigration Ordinance was amended by the PLC shortly on July 9, 1997. o Issue 1 The one way exit permit + certificate of entitlement provision required that they needed these documents before they were allowed to enter HK. The Mainland issued a one way permit and the cert was issued by HK. This provision was challenged applicants argued that the One way permit requirement was unconstitutional. They had the right of abode and had the right to enjoy their constitutional rights, but the one way exit permit made it not possible for them to enjoy their rights. o Issue 2 Only one kind of illegitimate children did not have right of abode. 2 possibilities for illegitimate child: Father of illegitimate child was HK permanent resident

 Mother of illegitimate child was HK permanent resident Where the father is a HK PR, and mother not an HK PR, the illegitimate child did not have the right of abode. Where the mother is a HK PR, and father not an HK PR, the illegitimate child had right of abode. The policy behind this is that it is easier to prove the childs mother rather than the father. In the case of an illegitimate child, it is harder to prove who the father is. This was challenged as unconstitutional because it contravenes equality and nondiscrimination between legitimate and illegitimate children. This law discriminates against illegitimate children of fathers rather than mothers. There is also some kind of discrimination between mothers and fathers. This part of the judgment was not controversial the government accepted it and amended the Ordinance o At all level of the courts, they all decided that this was unconstitutional. But for issue 1 and issue 3, both the two level courts upheld the arrangements. But the court of final appeal overturned these arrangements. o Issue 3 Whether the parent was an HK PR at the time of birth. At the time of birth, at least one of the parents had to be an HK PR. The BL is not clear on this issue. This would serve to limit the number of people who would be able to migrate to HK. o Issue 4 That the PLC was not a legitimate body to enact the amendments. This issue was already dealt with by the CA in Ma Wai Kwan. CFA also adopted a purposive approach in dealing with this. They wanted to overrule the CA in Ma Wai Kwan because they said HK courts had no jurisdiction to overturn the acts of NPCSC. But they had the jurisdiction to review legislative acts of the NPCSC to see if they are constitutional. If it was ruled unconstitutional, then they can declare them invalid. This is a power which according to Ma Wai Kwan, the HK courts did not have due to A19 of the BL. But CFA didnt agree with CA that A19 of BL prevented HK courts to exercise this kind of review. This sparked controversy. This statement was controversial because NPCSC was concerned that the CFA would be more power than the NPC or NPCSC. It concerns who had the final authority to interpret BL. EG: if HK courts had this kind of power, then they can overrule an NPCSC interpretation of BL, or any other NPCSC act. In the clarification, the CFA said that they would accept all interpretations made by NPCSC. So at least they cannot question NPCSC interpretations as inconsistent with BL.

The power of the courts to interpret the BL was actually derived from NPCSC itself because NPCSC has the power and it delegates some power to the HK courts. this was recognized in the clarification Ultimately, to determine whether an act of the NPC is inconsistent with BL, and questions of interpretation of the BL arise, those questions will ultimately be resolved by NPCSC according to the clarification. o Issue 5 Whether the court should refer to the NPCSC for review. The Clarification in Ng Ka Ling o The clarification says that nothing in the original Ng Ka Ling judgment questions the power of NPCSC to interpret and it is in accordance to BL o In the clarification the power of the HK courts to interpret BL comes from NPCSC. NPCSC authorized HK courts to interpret BL. o It is for the NPCSC itself to determine whether acts are in accordance to BL o It is also possible for HK courts to make a preliminary determination on these decisions, and these determinations will be authoritative unless NPCSC makes an interpretation to overrule such determinations by the HK courts Can the NPCSC issue an interpretation at any time? Can the CFA decide this question? o According to one interpretation of this interpretation, the CFA can decide this question on its own o But after deciding this question on its own, if the NPCSC then issues an interpretation saying that the CFAs interpretation is wrong, The power of the HK courts depends on how A158 itself should be interpreted. o How A158 is interpreted is also a question of the BL which the NPCSC will be able to say something about Other aspects of Ng Ka Ling o Should the CFA decide the case itself or should it refer any provision of the BL to the NPCSC for interpretation? o Why was this an issue of the Ng Ka Ling case? A158 Things that are the responsibility of the Central Peoples Government and matters relating to relationships between China and HK Necessary Conditions for interpretation: Before making a final judgment; where the interpretation will affect the judgment; and that the courts NEED to interpret a provision HK assumed it was an HK issue as it concerned immigration but China says that it concerns both China and HK o The Test for the Conditions before applying for a NPCSC interpretation: Necessity Condition is it necessary for the courts to seek interpretation for the case?

o Classification Condition to classify or determine whether a particular provision that is needed to be interpreted is about: relationship between Central government and HK; matters that are the responsibility of Central Peoples Government o 2 possible interpretations of A24(2)(3) You dont know for sure whether to get right of abode, the child of the PR must be born at the time before or after they have acquired PR status At the time of their births in this case, none of their parents had PR status It is clear that A24(2)(3) satisfies the necessity condition. Next we have to see if CFA needs to refer this to NPCSC via Classification Condition Yes. Two sides of the argument in Ng Ka Ling: It is a matter of immigration, and HK has autonomy when it comes to immigration. It is a matter which deals with the relationship between Hong Kong and the Mainland In Chan Kam Nga o HK courts decided that it was within their jurisdiction to decide on A24(2) (3) o Allowed mainland people who were born after their parents got PR status to exercise right of abode o The corresponding provision in Immigration Ordinance was then declared invalid In Ng Ka Ling o Illegitimate children it was declared that illegitimate children are also allowed to exercise right of abode because if not it would be discriminatory. o Article 22 Why does the court have to look at A22 at all when deciding the case? A22 requires people from other parts of China who enters HK get an exit permit. A provision in the Immigration Ordinance (amendment) requires people from the mainland get a 1 way exit permit and another certificate of entitlement from HK o How does A22 become relevant in this case? A22 was used by the lawyers for the government to defend against the argument that the 1 way exit permit procedure was unconstitutional. Without A22, the procedure for getting into HK would be unconstitutional. o 2 ways of interpreting A22(4)

First way of interpretation of A22(4): For entry into HKSAR, mainlanders must apply for approval. Among them, the number of people who enter the region for the purpose of settlement shall be determined by Central Peoples Government. Governments argument was that the application for approval refers to approval by the mainland side the 1 way exit permit (Immigration Ordinance Amendment) The other way of interpretation of A22(4): the reference to mainlanders in A22 refers to those who do not have right of abode in HK. If you have right of abode in HK, you are not a person from other parts of China so they need not be subject to this. A22 could then not be used to justify the exit permit procedure as there is not reason why HK require these ppl need the permit before they could exercise their right of abode in HK. A22(4) satisfies the necessity condition as well as the classification condition. CFA should have referred A22(4) to NPCSC for interpretation. But CFA did not refer in this case.

What is the significance in Hong Kongs constitutional law of the NPCSCs interpretation of 1999? Ng Ka Ling The interpretation of A22(4) and A24(2) by the NPCSC that was ultimately adopted was the same position adopted by the CA before the case went on to the CFA. Even HK judges themselves were divided as to how these articles were to be interpreted Lau Kong Yung case Argument which the applicants put forward regarding the interpretation of June 1999. The interpretation was referred to by the CE and not CFA. They were questioning whether this would make the interpretation valid. o Whether the interpretation by the NPCSC was validly issued because there was nothing in A158 which says CE can ask the state council to ask NPCSC to make an interpretation Although 158 requires CFA to refer provisions to NPCSC when the necessity and classification conditions are satisfied, it doesnt say anything about what would happen if the CFA didnt refer an interpretation where it should have referred had the conditions tests been applied correctly NPCSC interpreted both A22(4) and A24(2)(3) How did the CFA deal with these challenges to the validity of the interpretations? o CFA makes an interpretation of A158(1) o Says that the NPCSC has the power to interpret the BL. This means that the NPCSC even if it is not asked to do so can interpret o A158(3) says that a request by CFA for an interpretation is ONLY ONE of the channels of getting and interpretation. It is not an exclusive channel for NPCSC interpretation.

o CFA used free standing power of interpretation of the NPCSC. It can be used at any time and not limited to the situation of reference by the CFA o CFA didnt discuss in detail about CE requesting interpretation by NPCSC via State Council o There are at least 3 situations that can be distinguished First CFA makes a reference to NPCSC Second situation in 1999 where the CE makes a report to State Council and the Council makes a request for interpretation from NPCSC Third in theory it is possible but CFA didnt distinguish between 2nd and 3rd situation. Where NPCSC issues an interpretation on its own initiative without being asked by the CE, State Council, or CFA to do so. This situation arose in 2004 regarding the change in CE. o A distinction of application of BL and interpretation of BL is made If the provision is clear and obvious then no need for interpretation o In this case, is the Necessity Condition satisfied? Ie is it necessary for the judgment? Chong Fung Yuen How did the government in this case make use of the NPCSCs interpretation of June 1999 in arguing this case? Chong is important because it raises issues connected to the June 1999 interpretation. Concerned Chinese parents who unlawfully overstayed in HK and their child was born in HK. The parents were then sent back to China. Right of abode issues? The question was whether the child was an HK PR The BL says that if someone is born in HK then they are an HKPR o But there are other laws relating to birth in HK as well o The relevant law here is Immigration Ordinance S1P2A A Chinese citizen born in HK after July 1 1997 would only qualify as HKPR if either parent was an HKPR; or The child will have the right of abode if the parents got a 1 way exit permit to HK before giving birth in HK Applicant argued that their parents status didnt matter as long as he was born in HK, he said that the provision in the Immigration Ordinance was unconstitutional because it is inconsistent with A24 of the BL Government argued, in trying to defend the provision in the Immigration Ordinance o Partly based on the interpretation of June 1999 o In this case, A24(2)(1) was said that it should be referred for interpretation It satisfies the necessity condition It satisfies the classification condition as well

Government argued that A24(2)(1) had a substantial effect on immigration controls in the mainland. If mainland people can give birth in HK and the kid had right of abode, then maybe a lot of people would come to HK just to give birth. This is not a very strong argument because A24(2)(1) is about Chinese citizens being born in HK and didnt only require the parents to be from the mainland. If foreigners came to HK to give birth it would be similar as well. This argument is pretty weak it can be argued that the classification condition might not be met. If it is not referred then it should take into account the interpretation of 1999 o What NPCSC said in June 1999 actually supports the current relevant provision in the Immigration Ordinance o On the face of it, like Chan Kam Na, concerned the interpretation of BL concerning who had the right of abode in HK The governments argument that A24 should be referred to NPCSC o A158(3) sets out conditions under which the provisions of BL needs to be referred to NPCSC o Says it fulfills the classification condition because the substantial effect of immigration from the mainland is an issue here o After this case was decided many more women had come from the mainland as tourists to give birth to children o It is clear that the necessity condition is satisfied it is necessary to interpret A24(2)(1) for the purpose of this case The relationship between this case and the 1999 interpretation o Opinion of preparatory committee of HKSAR Had already thought about the complications which may arise with the implementation of A24 and had a series of recommendations o After this case was decided, the NPCSC issued a statement criticizing CFA for having interpreted A24(2)(1) in a way inconsistent with the 1999 interpretation o A24(2)(3) was the controversial provision in Ng Ka Ling was also a subject of discussion in this opinion o NPCSC did not say anything about A24(2)(1), but it said something about A24(2)(3) But it also said that prep committees recommendations reflect how A24 ought to be implemented This is what the government is relying on in its argument o The NPCSC said all categories of A24(2) would include A24(2)(1) have been reflected by the opinions of prep committee The court disagreed with the governments argument o A158(3) focusing on provision requires the court to consider the character of the provision o Distinction can be drawn by looking at the character of the provision and the effect of its implementation

o Court believes that it should disregard the relevant facts concerning the effects of the implementation o Questions of who had the right of abode in Hong Kong are matters of Hong Kong autonomy; its not right of abode in the mainland that is being considered o The court applied common law and said that the legislative intent should trump the opinions of Prep Committee o The court said that the Prep Committees opinions are not binding o But the 1999 interpretation is binding, so how did the court avoid applying what the NPCSC interpretation in 1999? In absence of a binding NPCSC interpretation for A24(2)(1), the NPCSC interpretation of 1999, which applied to A24(2)(3), cannot bind The interpretation in 1999 does not relate to A24(2)(1), it only binds the courts in A24(2)(3) They are two completely different provisions A24(2)(1) was never referred to in any part of the 1999 NPCSC interpretation After this decision there was a big rise of pregnant women from the mainland to give birth in HK

Political System and Development What is the high degree of autonomy which the SAR enjoys? Tax, currency, entry/exit, customs territory, no need to pay tax to PRC Participation on its own in the international community? International affairs reserved for central government. But internationally they can participate in business issues o Using the name of HK, China it can participate in some international activities such as WTO and Olympics in the same way independent nation states participate. Is Hong Kongs autonomy secure? o NPCSC a political body that has final power to interpret BL and resolve any dispute between SAR and central government regarding the scope of their powers o In federal systems you see many disputes concerning relationships between federal and provincial or state government. In many cases it will go to court and appealed to supreme courts. In these systems, theres only one legal system so the population has full trust in the impartiality and capacity of the judges o Constitutional safeguards in federal systems the constitutional provides safeguards. In Hong Kong, the BL is not entrenched in PRC, HKs autonomy is guaranteed by the BL and Joint Declaration. But the BL is a law that NPC can amend.

Autonomous Regions Autonomy refers to a distribution of governmental power within sovereign states o Presupposes that there are some affairs where the autonomous government has no control o But the autonomous government is seen as better suited to represent the interests of the local population o Local government would have legislative, executive, and judicial powers over the region. More extensive powers leads to a more autonomous region. Degree of autonomy o Method by which the local government is formed o Division of powers in the legislative, executive, and judicial spheres between the central government and local government o Mechanisms for rectification of errors and resolution of disputes Federal states o Union of member states each state has exclusive jurisdiction over certain matters in their territory while the federal government reserves jurisdiction over other affairs o Concurrent powers federal and state will be able to make law on a particular matter but if disputes arise, federal trumps o Division of powers set out in constitution supremacy of constitution one cannot intrude into the powers of the other Guaranteed autonomy? Conflicts between governments resolved in federal court More rule of law? o Residual powers things that were not originally included in each governments spheres of powers will ultimately rest on either state or federal jurisdiction Unitary state o Autonomous power of a jurisdiction is derived from the states legislature not from the constitution o Constitution is supreme and binds national legislature and judiciary autonomous regions powers not protected by constitution Autonomy of the jurisdiction not guaranteed and entrenched o Granting of autonomy is a reserved right of the sovereign state One Country Two Systems China a unitary state even though it has provinces there is no formal division of power entrenched in the PRC constitution. BL establishes in the SAR political, legal, social, and economic systems different from the Mainland. No serious accusation that PRC has violated the terms of the Joint Declaration of BL

BL not merely a paper constitution reflects international treaty of Joint Declaration o In addition to the BL provisions, unwritten practices, understandings, and conventions have contributed much to improve One Country, Two Systems Degree of autonomy enjoyed by HKSAR much higher than member states of federal states o Over 99% of Mainland laws not applicable in HK only Annex III laws o No tax paid to central government o HKSAR has its own currency; HKSAR has its own immigration control; can use the name of HK, China to enter into economic and cultural relations Degree of autonomy not less than during British rule. Amending the constitution o In federal states, constitution cannot be easily amended o In HKSAR, NPC can act unilaterally to change the BL Drawback? ultimately a question of trust o Central government powers under Articles 17,18,158, and 159 substantial and can be exercised in a way to threaten HK autonomy but it seems they have exercised self restraint to minimize intervention and maximize SAR autonomy Whether the autonomous region can really represent the interests of its people depends on the political system of the region and this has fell short of international standards. o Not universal suffrage in electing the CE as of yet o But BL does provide a way to gradually reach democracy Hong Kong currently in a half way house between soft and benevolent authoritarianism and western style liberal democracy o Autonomy is not understood by PRC as full political self determination o HK ruled by HK people, but key HK governmental posts must be held by those deemed trustworthy by central government.

Whether Hong Kong is an Executive led government Whether it is correct to describe HKSAR as executive led government After an election of CE from an electorate, he still has to be appointed by Beijing If central government doesnt appoint an elected person as CE, he is not CE Basic Law provides that central government has the power to appoint someone who has been elected as CE A43 CE is accountable to central government as well as HKSAR o CE is head of executive branch and also the representative of HKSAR from the point of view of central government From point of view of central government, CE represents the whole of HKSAR Whether its true that HKs system of government is an executive led government and whether it is appropriate to describe it as an executive led government

o Executive led government means that the executive s powerful, more powerful than legislature o The different voting procedures Simple majority for government bills But if it is a private led bill then you have to separate the functional and private constituencies Government bills are more easily passed than private led bills Private led bills start at the members of legislature, but the voting system for the bills are different between government led bills and private led bills If it is a government bill then the whole council will vote. As long as there is simple majority of the whole council then the bill can be passed It is easier for government bills to be passed than private members bills to be passed. This supports the proposition that we have an executive led government. o Private members bills Can individual LegCo members propose any bills they like? No. There are restrictions to what bills they can propose. A74 private members bills are limited Bills relating to Public expenditure, political structure, operation of the government cannot be introduced at all by members of the council Bills relating to government policies can only be introduced with CEs consent In practice who determines whether a particular bill falls into these categories? Chairman of LegCo Rules of procedure of LegCO gives president of LegCo a lot of power in making these decisions The origin of executive led government where did this concept come from? o It came from the previous system of the colonial system because in colonial times it was also executive led o As BL was drafted, it was believed that some aspect of the colonial system should be preserved. It was believed that it was an executive led government because the governor had a lot of powers o But is CEs powers as great as the governors powers? Governors powers greater Governor appointed all LegCo members. He would have had powers to appoint members who were pro-government to be LegCo members. In those days LegCo, compared to LegCo today, was much less active in scrutinizing the work of the government. They were generally willing to pass all bills proposed by the government. But today any government proposal would be subject to scrutnity by LegCo members and many bills would

not be passed in their original form and LegCo members would demand amendments. Also, LegCo members used their powers of inquiries, questioning government proposals for expenditure, and exercise powers really rigorously. He was also the chairman of LegCo o Political parties today do not always support a government bill. More scrutiny today. Executive led government may not be practiced Today the constitution achieves something of a balance of executive and legislative branches o CE not elected by the people of HK but chosen by an electoral college o LegCo elections much more liberal different electorates; contrasting qualities in representatives; o CE cannot instruct judges; cannot be involved in judicial process; he can only make subsidiary legislation when authorized by LegCo; cannot be given broad legislative power o LegCos power to approve budgets and tax proposals ensures executive subservient o At the same time CE may dissolve Council if it is obstructive (A50) The check to this power is in A52 which requires CE to resign if he cannot discharge his duty when a re-elected LegCo persists to pass a bill refused by CE CE who loses confidence of the Council could not discharge his duties and is forced to resign o Accountability can go both ways CE can be accountable to LegCo and force his resignation if he fails his duties LegCo can be accountable to CE because he can dissolve it Even for judiciary, Chief Justice may be investigated under A89 if he fails his duties. Reminiscent of checks and balances In conclusion, HKSAR not an executive led government? Degree of strength in Executive Led Government o Strongest: CE receives strong and stable support from the party or coalition of parties that occupies a majority of seats in LegCo o Weakest: where the parties that occupy majority seats in LegCo opposes CE o Fairly Weak: where CE can maintain a cooperative relationship with LegCo and form a loose governing coalition. o Fairly Strong: LegCo does not have a majority controlled by a political party or coalition, but consists of members form different small parties. The government needs to lobby on policies in order to secure support of a majority of LegCo

The political system and democratic development cases

Lee Mui Ling v Attorney General (Pre-97) P argued that the existing laws relating to LegCo elections were unconstitutional and invalid o Existing voting rights on the functional constituencies meant that people had different voting power due to FCs different sizes o Also P was still unhappy because it isnt universal suffrage o A21 BORO provided that everyone had the right to vote BORO is not the higher law so the LegCo Ordinance cant be bound by it Letters Patent was the higher law A7(5) says no law shall contravene ICCPR D had an easy case o Existing methods are rational using proportionality test. The very nature of FCs vary in size and perform different functions. Sensible people would not find this method problematic. o Difficult to determine whether existing methods are good enough anyways because some will say yes some will say not If same issue brought to court today, government can use the same arguments as this case. Chan Yu Nam v Secretary of Justice LegCo Ordinance non PRs voting allowing Corporations to vote A26 BL gives HK PRs right to vote corporations not natural persons In the 80s, corporations have always enjoyed the right to vote. BL Annex II gives them the right too. If non persons can vote, then it means you can extend right to vote to non PRs o But giving it to non PRs would dilute the PRs voting rights o Any right given to non PRs to vote subject to proportionality test But here, proportionality test was not applied. A26 BL interpreted broadly. o This article does not apply to FC elections, only applies to GC and other forms of elections o Intention of the BL historically, Corporations were allowed to vote in FCs Leung Kwok Hung v President of LegCo Amendments of bills at the committee stage before going to LegCo if private member proposes bill which will have effect on expenditure, then it needs CE approval Leung wanted to amend the Interception and Surveillance Bill would have expenditure effects if amendments adopted A74 BL LegCo cannot INTRODUCE bills relating to expenditure and policy. Says nothing about amendment of a bill relating to expenditure and policy. 3 interpretations of A74 BL

o Leung narrow A74 only prohibits private members from introducing bills relating to policy and expenditure, does not bar private members on amending bills which will have charging effect o Government wide that private members cannot introduce or amend bills which will have charging effect relating to expenditure o Court agrees with Leung A74 only applies when introducing a bill relating to policy and expenditure. But it is for LegCo to make rules about members making amendments with charging effects. Court looked into the intention of the LegCo rules even before handover, LegCo and Parliament had LegCo make its own rules. Implications on Executive Led Government o Even without CE consent, can MAY mean that LegCo can amend bills with charging effect even without CE consent.

Cheng Kar Shun v Honourable Li Fung Ying Former government official retired and hired by property developer conflict of interests LegCo created a select committee to investigate this o A73 BL gives powers to LegCo one of them was to summon witnesses o LegCo Ordinance Cap 382 S9(2) gives LegCo power to summon witnesses o Issue is whether the SELECT COMMITTEE also has these powers Cheng argues it is not within select committees powers to summon Court disagreed on their own jurisdiction to intervene on LegCo procedures o Common Law says Parliamentary Supremacy unless there is clear cut Ultra Vires o Legislature to regulate its own internal workings o This case is not a clear cut case of Ultra Vires o Ultimately it is up to LegCo to make and interpret its own rules and proceedings Case is important because it establishes the rule of general non intervention of the court to the internal workings of Legislature subject to exceptions. Affirmed the validity of LegCo Powers and privileges ordinance. Used wider rather than narrower approach