WEEK 4 TUTORIAL PRESENTATION

Daisy Li, Jaerey Banesca Velasco & Wilson Wu presents...

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Topic:

Do you think the national laws of the PRC should be applicable to Hong Kong SAR? Under what circumstances should it be applicable? On what grounds?

HISTORY & BACKGROUNDA look into the...

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Sino-British Joint Declaration

– Signed December 19th, 1984– Social contract between British and Chinese– What laws should apply to Hong Kong– Agreed Hong Kong is to have high degree of

autonomy• Except when it involves foreign and defence affairs

– Basic Law made to,• Ensure agreement is maintained• Ensure principle of “one country, two systems.”

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Five years of discussion of the Basic Law

– Agreed that final power of interpretation rests with the Standing Committee of the NPC

– Agreed that Basic Law is not a constitution– Agreed that Basic Law has higher status than

other national laws– Thus all provinces, autonomous regions and

municipalities must abide by the Basic Law

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BASIC LAWAccording to the...

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According to the Basic Law

• Article 13– The Central People’s Government shall be

responsible for the foreign affairs relating to the Hong Kong Special Administrative Region

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According to the Basic Law...

• Article 14(1)– The Central People’s Government shall be

responsible for the defence of the Hong Kong Special Administrative Region.

• Article 14(2)– The Government of the Hong Kong Special

Administrative Region shall be responsible for the maintenance of public order in the Region.

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According to the Basic Law…

• Article 18(2)– National laws shall not be applied in the Hong Kong

Special Administrative Region except for those listed in Annex III to this Law…

• Article 18(3)– …Laws listed in Annex III to this Law shall be

confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.

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According to the Basic Law

• Article 19(1)– The Hong Kong Special Administrative Region shall

be vested with independent judicial power, including that of final adjudication.

• Article 19(3)– The courts of the Hong Kong Special Administrative

Region shall have no jurisdiction over acts of state such as defence and foreign affairs.

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According to the Basic Law

• Article 158 (1)– The power of interpretation of this Law shall be vested

in the Standing Committee of the National People’s Congress

• Article 158 (2)– The Standing Committee of the National People’s

Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases the provisions of this Law which are within the limits of the autonomy of the Region.

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Power of the NPC on HKSAR

NPC

• Final adjudication on cases in HKSAR in relation to defence and foreign affairs

• National Laws will not be applicable in HK except those in Annex III of the Basic Law.

• May add or delete from Annex III

HKSAR

• Final adjudication on cases in relation to HKSAR only

• Previous laws still valid as long as it does not contravene with the Basic Law

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Seems pretty clear, right?

Let’s see...

CIRCUMSTANCES AND GROUNDS IS NATIONAL LAW APPLIED?

Under what...

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What Circumstances?

• Four circumstances– Defence & Foreign Affairs– Under Emergency– Annex III– Article 23

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DEFENCE & FOREIGN AFFAIRS

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Defense-Garrison Law

• Article 14 is supplemented by the Law of the People’s Republic of China on Garrisoning the Hong Kong Special Administrative Region

• This is a national Chinese law passed on 30th December 1996 by the NPCSC

• It applies to HK under Article 18 of the Basic Law and came into effect on 1st July 1997

• It’s clear that under Article 14(3) garrison will not normally interfere in HK’s local affairs

• Reiterated in Article 9 of the Garrison Law• Other provisions in the Garrison Law require

members of the garrison to:1) Respect the way of life, among other things in

Hong Kong (Article 16 GL)2) Not join local organizations (Article 17 GL)3) Not engage in profit making activities (Article 18

GL)

• Criminal cases involving members of the HK garrison while on duty would still be tried by Chinese military courts; while they are off duty would be tried by HK courts (Article 20 GL)

• Civil cases involving members of the Hong Kong garrison while on duty being tried by Supreme People’s Court but they would use Hong Kong law to decide any compensation (Article 3 GL)

Garrison Law Article 6

• In the event that the NPCSC decides to declare a state of war or, by reason of turmoil within the HKSAR which endangers national unity or security and is beyond the control of the Government of the Region, decides that the Region is in a state of emergency, the Hong Kong Garrison shall perform its duties in accordance with the provisions of the national laws that the CPG decides to apply in the Region.

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STATE OF EMERGENCY

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State of Emergency?

• According to Article 18 (4), a state of emergency is invoked when the Standing Committee of the National People’s Congress decides to declare a state of war or turmoil which endangers national unity or security and is beyond the control of the government of the region.

• During a state of emergency the Central People’s Government may issue an order to apply relevant national laws that are not already listed in Annex III of the Basic Law.

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War? Turmoil?

• What exactly is the definition of state of war and turmoil which endangers national unity or security?

• So far, no clear definition.

• However, an example of turmoil would be the right to abode case.

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Example: Ng Ka Ling and Ors v Director of Immigration

• In Ng Ka Ling, CFA said meaning of the wording of Articles 22(4) and Article 24(2)(3) were clear in allowing mainland-born children in the right to exercise their right of abode

• Under court’s ruling, there will be 1.67 million of children born in China can gain right of abode under Article 24(2)(3). Hence, under this emergent situation, the Chief Executive later use his power under Article 43 and 48(2) to report to the state council and said the court’s ruling had caused problems, and asked for assistance from the NPCSC.

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• Finally, NPCSC interpreted that it is unlawful for people from all areas of China without complying the appropriate approval procedure prescribed by the relevant national laws and administrative regulations. People from other part of China if want to enter HKSAR must apply for the certificate of entitlement and valid travel document from the relevant authorities before coming to HK.

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In the eyes of NPC…

• It was found to be beyond the control of Hong Kong government and was endangers national unity or security , so NPCSC should step in and got the final power of interpretation of the Basic Law

• Articles 22(4) and 24 should not interpreted separately from each other. Also, they must be read in conjunction with the PRC Nationality Law that is also included in Annex III to the Basic Law 26

After the Ng Ka Ling case questions regarding Article 18 (4) began to

surface…• People wonder was it necessary to invoke a

state of emergency?• Does Article 18(4) require the NPCSC to consult

the HKSAR government before declaring a state of emergency?

• Does Article 18(4) place any restriction on how long such a state of emergency would last?

• Does Article 18(4) place any restriction on what national laws can be applied during a state of emergency?

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• “Are those national laws passed in an emergency period should no longer be valid after the emergency conditions have ended?”

Priscilla Leung, ‘The Nature of Basic Law’,1999 Hong Kong Lawyer, April Issue

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Xiao Weiyun’s View

• “Some may think that a state of emergency should be declared with the consent of the Government of the HKSAR. This would not be appropriate because a decision to declare a state of emergency may mean constraints on the basic rights and freedoms of citizens. Such power should only be exercised by the CPG.”

• One Country, Two Systems: An Account of the Drafting of the Hong Kong Basic Law,1993

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ANNEX III

National Laws within the Basic Law...

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National Flag and National Emblem Ordinance s7

• A person who desecrates the national flag…by publicly and willfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level 5 [ie,$50,000] and to imprisonment for 3 years.

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PRC Law on the National Flag

• Article 19: prohibits ‘publicly, and willfully burning, mutilating, scrawling on, defiling or trampling upon the flag

HKSAR v Ng Kung Siu and Lee Kin Yun

• The issue in this case was that National Law was being applied at the expense of the rights given by the International Covenant on Civil and Political Rights through Article 39 of the Basic Law.

• Article 19 of the ICCPR: Freedom of opinion and expression

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HKSAR v Ng Kung Siu and Lee Kin Yun

• CA:

• “Both flags had been extensively defaced in a number of ways…At no stage of any of the events relating to the activities of D1 or D2 did any violence occur, and there appears to have been no threat of it arising. This was a peaceful demonstration”

• CFA:• “…The question before us

is whether these legitimate interests justify the restriction on the freedom of expression by the criminalization of desecration of the national and regional lags…in the absence of such justification, the statutory provisions would be unconstitutional as contravening the Basic Law and the courts have the power and duty so to declare…” 34

ARTICLE 23

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Article 23

• The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

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Views

• One view, in order to avoid the PRC to apply National Law into HK through Article 18 (4) HK government should draft and pass the content of Article 23 as soon as possible.

• Second view, there are already sufficient laws in HK that take care of those offenses.

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• Margaret Ng advocated that there was no need to pass any local laws under Article 23 as the existing laws (eg. Crimes Ordinance) in Hong Kong are sufficient to protect public order and state interest.

• From Article 23 Concern Group Website

OUR CONCLUSION

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Our Conclusion

• Since Hong Kong does not have its own military the Garrison Law can provide the presence of military with little to no interference to HKSAR’s Basic Law. Thereby, providing military protection without interfering with the rights that the Hong Kong public has grown accustomed to.

Our Conclusion

• We agree that with regards to defence and foreign affairs then National Laws should apply.

• However, we are concerned about Article 18 as it says a state of emergency can be invoked by the Central People’s Government. No description of getting consent from Hong Kong’s people or government. No description of the duration of what or any limits of “relevant national laws” are to be applied for.

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Our Conclusion

• Countries such as Australia, Canada and the United States all stipulate a length of time a region or country remains in a state of emergency.

• In the case of Australia their upper or lower House of Parliament can revoke the state of emergency at an earlier time.

• Another difference is that the countries mentioned above all have leaders that are voted in by the public.

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Our Conclusion

• We must note that none of the other mentioned countries have two systems in their country.

• We would like to see a system in HKSAR where state of emergency can only be declared by the CE. The duration should be amended into the Basic Law. The CE should also list which legal provisions will be affected at the time of invoking. In addition, the legislative council should be given the power to end the state of emergency when they see fit.

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Our Conclusion

• Our proposed solution would work best if the CE was voted in by the people of HKSAR as he or she will have the confidence of the people. Thus we will feel that the CE is genuinely putting Hong Kong’s interest as priority.

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Our Conclusion

• In regards to Article 23 we feel it is best if HKSAR quickly drafts and passes laws that define the acts in question. This way, the PRC would not feel necessary to step in and apply National Laws. If HKSAR passes their own laws for such purposes then HK would retain more control of such laws.

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Our Conclusion

• In addition, if the HKSAR drafts and passes such laws then the power of interpretation will remain in the hands of Hong Kong. Otherwise, if it is added into the Basic Law into Annex III then the final power of interpretation will rest with the PRC.

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Bibliography:

• Priscilla Leung (ed), Basic Law of HKSAR: From Theory to Practice,1998

• Priscilla Leung, “The Nature of Basic Law”, Hong Kong Lawyer, April Issue,1999

• Xiao WeiYun, One Country Two Systems and the Basic Legal System of Hong Kong, 1990

• Xiao WeiYun, Introduction to the Basic Law of Hong Kong Special Administrative Region, Law Press-China, 2000

• Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption if Chinese Sovereignty and the Basic Law, Hong Kong University Press, Hong Kong,1999