Tutorial 2 Me

7/23/2019 Tutorial 2 Me

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Constitutional Law- Tutorial 2

Question 1

What is autonomy?• Being able to determine your own internal afairs in a meaningul way

o Domestic stuf

• How much autonomy instead o how !inde"endent#

• $ %uestion o degree -& what constitutes a higher degree o autonomy?

• 'ach o them with relation to china

Six Criteria to access autonomy

• Di(ision o "ower between the branches

o 'm"hasis not on the se"aration but on each)s relation to the Central

go(ernmento

'*ecuti(e +, BL

++ BL relationshi" between central authority and H./$0

• 1 (ested with e*ecuti(e conduct administrati(e afairso the H./$0 on its own

• 13 central "eo"le)s go(ernment shall a""oint the C' and

the "rinci"al o4cials in H. -& becomes contro(ersialunder the new constitutional ramewor5 ater 1667 -& orsuch a long time ceremonial a""ointment is a con(ention

enact own law immigration "olicy labor "olicy inde"endent

ta* system

86 BL science and technologyo Legislati(e

Highly autonomous -& "ass whate(er law in H. or H.

9ower o :9C/C in the legislati(e "rocess?

$rt 17 -& :9C/C has the "ower to return the law i !it#

determines that the law contra(enes with BLo ;udiciary

$rt 6< -& H. (ested with inde"endent =udicial "ower including

>nal ad=udication "ower :g .a Ling - ,arious "eo"le claimed 90 in H. -& right o abode

• +mmigration rdinance -& they ha(e to ha(e a "iece o

"a"er beore establishing they ha(e the right o abode -&the ordinance was unconstitutional -& "anic that the C@$)sdecision will lead to inAu* o "eo"le

• C@$ "ower -& it seems to "ut itsel abo(e the :9C/C

o C@$ ta5es constitution li5e BL as higher law than

the :9C/C -& claim that it is or the H. court todetermine whether the acts o :9C/C areconsistent with the BL

o BL is "assed by the :9C/C which ga(e H. a

constitution under art 81 -& means it also gi(es H.the "ower to declare other laws in(alid

o Clash o constitutional structures

o 0e%uest by the H. go(ernment or clari>cation :g .a Ling 2



• 9redominant "ro(ision test

• :9C/C inter"retation

o 9olitical intererence

• :ot bounded by the :9C/C decision

• '*trinsic material will not be considered i the wording in

BL is clear

Chong @ung uen

ne country ta5es "recedence o(er two systems

• $rt 2 -& $utonomy is authoried by the central go(ernment -& im"lied

that whate(er is authoried can be ta5en bac5

• $rt 12 -& en=oy high degree o autonomy

• literal (iew -& authorie means authorie

• originalist a""roach

• Conte*t -& high degree

White "a"er

• 9atriotism -& additional %uali>cations on the selection o =udges and C'

such re%uirements are not in the BL -& what counts as e(idence o"atriotism?

o :ot holding oreign "ass"ort =ust an e*am"le? Barely minimum

re%uirement?

• What status does a White "a"er ha(e?

o :ot binding

o 0e"resent the o4cial (iew o central go(ernment and will "robably

be ado"ted

• Balancing =udicial autonomy?

• +nternational in(ol(emento High degree in terms o s"orts international trade

• Constitutional entrenchment

o eaningless i BL can be amended (ery easily in a(or o the central

go(ernmento $rt 136 -& "ower o amendment is (ested on the :9C/C

8 entities to "ro"ose amendmentE :9C/C /tate council and H.

unclear "rocedure -& areas o uncertainty

still untested area

• /co"e o "ower FH. Go(t both LegCo and '*co

o 'nact own law own currency education system

o Legislati(e H. (s CH+:$ Fnot internal "ower egI 9an democratic

local "asses a law to what e*tent China has inAuence the "ass o"ower

• ;udicial inde"endenceJ se"aration o "ower Fconstitutional entrenchment

o +mmigration rdinance

o @inal ad=udication sub=ect to :9C/C inter"retation

• +nde"endent dis"ute settlement mechanism



o +n case o conAicts or inter"retation how would we resol(e that

mechanismo Dis"ute in BL $rt 13K :9C/C has >nal say on laws !concerning

relationshi" between $uthorities and 0egion or concerning therelationshi" between China and 0egion# e*ce"ted e*cluded "ro(ision

Ftied to the %uestion o =udiciary

• Clear di(ision o "ower F'*co LegCo and ;udiciary

o To what e*tent the e*ecuti(e can im"lement economic "olicies

inde"endent rom China)s o(ersight Durability +nde"endent >nancial system

H. no need submits M to go(t F>nancially inde"endence

$rt 3 ensures H.)s economic system as ca"italist

How the e*ecuti(e is elected? the relationshi" o H. ( China

:9C/C reser(es the right to a""ro(eJ a""oint Flegitimatelymust be accountable to China

+ssue o a""ointment through a relati(ely air "artici"atory

im"lementationI F$rt N3 $nne* 1 Cha"ter 2 and Cha"ter N the "ower o a""ointment undermines autonomy

Cultural crash go through the a""ointment "rocess base on

the British model o !royal assent# monarch by con(ention willnot re=ect the consents i the "eo"le agreedI Howe(er thesymbolic "ower only a""lies in the British modelI +n Hong .ongBL it mention China has the "ower o a""ointment Fnot onlysymbolic "ower but substantial "ower

Ha(e the "ower in educationFart 18 economic labour Fart

187 s"orts etc the constitutional structure is set u" thate*ectu(ie has a wide "ower to im"lement internal afairs

o ;udiciary >nal inter"retation 0eerence to :g .a Ling

o Legislature

The electoral "rocess

$rt 17 Hong .ong /$0 has the "ower or legislate

inde"endentlyI Distribution o "ower is "assed need to bere"orted to the :9C/C the :9C/C will loo5 at the law idetermine the law "assed by LegCo contra(enes the BL"ro(ision on afairs within the sco"e o C9G or H. China relation can return the law Fit can declare and return the law

The im"ortance o con(ention set u" the $rt 17 but de"ends

on whether there is an con(ention that :9C/C ta5es an acti(erole in scrutiniing the "owerI

• OOO0esidual 9ower

o whether an unstated "ower is (ested in H. or China

o $s not e(erything can be listed in the BL some "ower can be come

u" Fwho has the authoritieso Pnder BL $rt 2< H./$0 may en=oy other "owers granted by :9C/C

loo5s that don)t ha(e residual "owerI + not granted to H. e*"licitlyo +n P/ constitution it states that what e(er "ower was not gi(en to the

Central Go(enrment is reser(e to the state started with a state outo 8< territories F"owers are >rst granted to the inde"endent states

then to the Central go(t• Durability



o uncertainties beyond the 3< years China thin5s ater 3< years

would not need to ha(e a se"arate system

• Constitutional entrenchment to what e*tent those saeguards can be ta5en

away in such a way we can change the "ro(isiono How saeguard can be easily ta5en away and how do we 5now

o $rt 136

hard to amend?o The "ower to amend and the "ower to "ro"ose an amendment

o The "ower to amend (est to the :9C "ower to "ro"ose (est in the

:9C/C /tate Council and H./$0o !no amendnement o this lawQ# the :9C can amend H. law but

who has the >nal say in inter"retation o $rt 136 who can de>ne!established basic "olicies#? still the :9C/C undermine autonomy

Ng Ka Ling

• Whether certain "eo"le who call a4liation to Hong .ong has the right o

abode under $rt 2No +mmigration rdiance said i claim 0$ one way "ermit is

needed a >*ed entitlement in order to show the 90 statuso Whether the re%uirement is constitutional

• Court e(entually said "eo"le has the right o abode e*ecuti(e araid and

see5 or inter"retationo Distribution "ower

o 9ower o local court

o 96E the court is the inter"reter o BL and when it inter"rets the BL

can declare other ordinary laws in(alid Fduty o the court causesu"roar as belie(e that C@$ is "utting itsel in an u""er "ositionFcannot be right

o $utonomy o the court C@$ issue an clari>cation F"lacing itsel in

a higher "osition o the :9C/C :g .a Ling :o2E =urisdiction o the court and s13K F"ower o

inter"retation (ested in :9C/C the court is bac5trac5ingunder "olitical "ressureI

o Chong @ong uen came u" an inde"endent inter"retation the

:9C/C inter"retation is abt art 2NF2F8 but C@ is about 2NF2F1 but diferent subsection Fthe old common law techni%ue indistinguishing

o OOO:g .a Ling assertion o =urisdiction by e*"loring common law

inter"retationI OOThrough common law techni%ues ta5es bac5 the"ower

White 9a"er

• What is the understanding o !ne Country Two /ystems# e*"ressed in the

White 9a"er?o $ undamental ob=ects o maintaining China)s so(ereignty security and

de(elo"ment interests ad maintaining the long-term stability and"ros"erity o Hong .ong

o Combine u"holding the "rinci"le o !one country# with res"ecting the

diference o !two systems#o Two systems is subordinate rom the rights o one countryI ne country

is the basis o two systemsI



o Central go(t authories high degree o autonomyI $n inter"retation o

autnomy as something that is authorieso 9eo"le who administer Hong .ong needs to be "atriotic residual "ower Hong .ong doesn)t ha(e

• +s this understanding consistent with the "ast descri"tion o !ne Country

Two /ystems# by Chinese o4cials?o The country ollows "ractices socialism while Hong .ong and some

other regions "ractice ca"italismIo H. retain its ca"italist system and en=oy a high degree o autonomyI

o Hong .ong "eo"le go(erning Hong .ong

o 2<12 Woo ;in Tao said needs to be maintain a balance res"ect one

country and two systems and a""ro*imately e%ual amount in these twoas"ectsI

o +n 2<<7 one country is "rere%uisite o two systems

o ne country is the basis o two systems on "a"er F?

o White "a"er is warning to the society to remind those "eo"le with

e*treme thoughts com"letely inde"endent and se"arate Hong .ongrom China im"ossible to o"erate without China

o Two ways to inter"ret a %uestion o history Fwhen the CT/ is

ormulated !mar5eted# to H. the idea is descri"ted that twodiferent systems com"letely se"arate historical dimension

o Crush o legal culture constitutionalism limits on "ower the common

law a""roach is there is clearly de>ne limitsI Two distinct systems canthe "ower be limited to established categories Foreign afairs military a common law ways how limits on go(t)s "ower wor5s Fneeds to beclearly stated i the category o>ntererence is not ound its o5I Butin China no crushes in legal culture FThe diferences in history andlegal culture

• Do you agree with the understanding o !ne Country Two /ystems#e*"ressed in the White 9a"er?

• Do you agree that the undamental ob=ecti(es o !ne Country Two /ystems#

are to maintain China)s so(ereignty security and de(elo"ment interests andto maintain the long-term stability and "ros"erity o Hong .ong?

o Bac5 to the undamental %uestion what is a constitution or?

9rotecting rights and reedomsI Two diferent systemI Crushes o legalculture limits on go(t)s "ower maintaining indi(idual rightsI

• +s the high degree o autonomy o the H./$0 an inherent "ower or to run

local afairs as authoried by central leadershi"?

o 0esidual "ower• /hould Hong .ong en=oy !residual "ower#

o 0esidual "ower "ower retained by a go(ernmental authority ater

certain "owers ha(e been delegated to other authorities

• /hould !two systems# be subordinate to on a "ar with !one country#

• Ha(e the newly established systems and mechanism mentioned in the White

9a"er im"ro(ed the im"lementation o BL?

• 9atriotismo + written in a white "a"er di4cult to e*clude the negati(e

connotationso Le(el o generality what 5ind o "atriotism?

o 9essimisticE allies with all the central authorities



o "timisticE There is a legal basis that o4cials need to be "atriotic

nationality re%uirement ceremonial basic minimal and undamentalFunderlying assum"tions

• /tatus o White 9a"er

o +ssued by inormationa 4ce o the /tate Council not :9C/C

o :ot binding in H. Courts

only a re"ort no constitutional statuso +t is not as sinister as "eo"le thin5 it is not a law the go(ernment)s

"oint o (iew the court is still inde"endent and u" to them to inter"retthe basic law according to the common techni%ues

o + the language o BL is unclear the court $ loo5 at e*trinsic

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