Impact of Change of Sovereignty to HK Legal System
Albert Chan suggested that the pre-1997 legal system in HK has been preserved to an large extent in the sense that significant majority of the pre-existing law continues to operate, lawyers and judges continue to practice in the same manner and common law approach is used in adjudicating cases.
However, certain ordinances were excluded by the NPCSC prior to changeover, most significantly the Public Order Ordinance and the Societies Ordinance. Prior to 1 July 1997, a series of amendment were introduced by the Governor Patten to bring HK law in line the ICCPR standard such as freedom of public demonstration. The exclusion of such reform gave rise to the Public Order (Amendment) Ordinance which reintroduced a lincencing requirement for any public demonstration and underwhich the Commissioner was given significant power to ban public demonstration on various ground such as national secuity. Furthermore, the Societies (Amendment) Ordinance revived the registration requirement of all societies and prohibits political bodies in HK to have any affiliation with foreign or Taiwan political bodies.
Before the changeover, the Letters Patent which served as the constitution of HK. By operation of the Supreme Court Ordinance 1873, all English law as existed on 5 April 1843 all applied to HK except those inapplicable to local circumstances or requires modification by local legislature. The Application of English Law Ordinance 1966 bring HK common law equity up to date with UK by stating that the all the English common law and equity are to be in force in HK as far as they are applicable. Chinese customary law have been preserved by Capitain Elliot's proclamation under which a dual legal system is established in 1841.
After the change over, the Basic Law replaced the Letters Patent to serve as the consitutional document for HK. As provided under Article 8 of the Basic Law, laws previously in force in HK, including common law, equity, ordinance, subordinate legisaltion and customary laws are maintained as far as they are conssitent with the Basic Law. However, under Article 160, the NPCSC is given to the power to declare certain law to be in contravention of the BL thus not adopted after 1 July 1997. In pratice, the previous common law system has been largely preserved by the Basic Law and the HK courts are allowed to refer precedents in other common law jurisdiction (Article 84).
Acts of UK Parliament which were directly applied to HK ceased to have force in HK and were replaced by local ordinances through the process of localisation. According to Article 18 of the Basic law, national laws do not apply to HK except for those listed under Annex III which are only in relation to foreign affair, defence and matters outside the limits of autonomy of HK. Such applicable national law must be introduced to HK through local enactment or through promulgation. This constraint on application of national law may serve well to preserve the common law system. However, it is subject to a significant and controversial qualification under Article 18(4) which allows national law to apply to HK when the NPCSC declare a state of war or HK to be a state of emegergency. Byron Wing described this power as writing a blank cheque to apply national law to HK because there is no objective criteria for making such declaration and no guidance as to what national law may be applicable to HK.
There are controversies as to whether the PRC Constitution applied to HK. CFA have on various occasion applied part of the PRC Constitution. For example, Aticle 57 and 58 were used to demonstrate the status of NPC and NPCSC in Ng Ka Ling. Artile 67(4) was used to support the interpretition power of the NPCSC in Lau Kong Yung. Cao Xiao Yang has argued that it would be difficult to see how the OCTS and BL could have legal effect if they are detached from the PRC Constitution. Most importantly, Article 31 of the PRC Constitution is the main authority of the existence of OCTS and the existence of the BL.
Unlike other common law jurisidction where the courts possess the final power of interpretation of its constitution. Article 158(1) vests the final interpretation power in NPCSC, capable of being exercised at any time by the NPCSC. All interpretations are binding on HK courts. (Lau Kong Yung)
Judicial Independence in HK
The Canadian Supreme Court in Valente v The Queen stipulates the 3 criterias for judicial indepence, which are security of tenure, financial security and institutional independence.
In colonial times, HK did not enjoy judicial independence because the Letters Patent empowered the Governor to give directions to any officers, including the judges.
The Basic Law provides for constitutional guarantee of judicial independence under Article 85 which provides that judicial power should be exercised independently and free from interference. HK Basic Law provides for solid protection for security of tenure. Once a judge is appointed, he enjoys security of tenure until he resigns or reaches the retirement age. A judge can only be removed for misbehaviour or inability to discharge his duty. Such removal is done by CE on recommendation of a specially convened tribunal (BL 89). Removal of the CJ of CFA and CJ in HC must be endorsed by the LegCo and reported to the NPCSC (90). However, magistrates and District Court judges who are not judges under the Basic Law, can be removed by the CE at anytime. Furthermore, judicial remuneration is determined by teh CE on an annual basis on the advice of the Standing Commitee on Judicial Salaries and Conditions. The Basic Law provides limited protection to prohibit judicial remuneration fall below the leverl prior to 1 July 1997. It has been proposed for HK to insert a statutory prohibition on reduction of judicial remuneration but this was rejeted by the Government. With respect to independent institution, the problem facing in HK is that although the Chief Justice is reponsible for administration of the court system, the judicial does not have control over its own budget and is subject to the discretion of the Executive.
Lack of final power of interpreation of the BL may have undermined judicial independence in HK as an interpreation by the NPCSC can reversed CFA's interpretation, such as in the case of Ng Ka Ling. [need further elaboration]
Depite the above mentioned defects, Peter Wesley - Smith has commented favourably that judicial indepencne in HK as largely secure. However, some also suggests that the reality of HK constitutional position imposes limits on how far judicial independence can be exercised in pratice when sensitive issues are involved.
Further points
Comparaitive law in HK