Sonny Shiu-hing Lo
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622099081
- eISBN:
- 9789882207547
- Item type:
- book
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622099081.001.0001
- Subject:
- History, Political History
This book assesses the implementation of “one country, two systems” in the Hong Kong Special Administrative Region (HKSAR) from the political, judicial, legal, economic, and societal dimensions. The ...
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This book assesses the implementation of “one country, two systems” in the Hong Kong Special Administrative Region (HKSAR) from the political, judicial, legal, economic, and societal dimensions. The author contends that there has been a gradual process of mainlandization of the HKSAR, meaning that Hong Kong is increasingly economically dependent on the People's Republic of China (PRC), politically deferent to the central government on the scope and pace of democratic reforms, socially more patriotic toward the motherland and more prone to media self-censorship, and judicially more vulnerable to the interpretation of the Basic Law by the National People's Congress. The book aims to achieve a breakthrough in relating the development of Hong Kong politics to the future of mainland China and Taiwan. By broadening the focus of “one country, two systems” from governance to the process of Sino-British negotiations and their thrust-building efforts, the book argues that the diplomats from mainland China and Taiwan can learn from the ways in which Hong Kong's political future was settled in 1982–1984.Less
This book assesses the implementation of “one country, two systems” in the Hong Kong Special Administrative Region (HKSAR) from the political, judicial, legal, economic, and societal dimensions. The author contends that there has been a gradual process of mainlandization of the HKSAR, meaning that Hong Kong is increasingly economically dependent on the People's Republic of China (PRC), politically deferent to the central government on the scope and pace of democratic reforms, socially more patriotic toward the motherland and more prone to media self-censorship, and judicially more vulnerable to the interpretation of the Basic Law by the National People's Congress. The book aims to achieve a breakthrough in relating the development of Hong Kong politics to the future of mainland China and Taiwan. By broadening the focus of “one country, two systems” from governance to the process of Sino-British negotiations and their thrust-building efforts, the book argues that the diplomats from mainland China and Taiwan can learn from the ways in which Hong Kong's political future was settled in 1982–1984.
Sonny Shiu-Hing Lo
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622099081
- eISBN:
- 9789882207547
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622099081.003.0004
- Subject:
- History, Political History
In January 1999, the Court of Final Appeal (CFA) made a controversial decision on the debate of the right to abode of the mainland Chinese in the HKSAR. As a result, the HKSAR government asked the ...
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In January 1999, the Court of Final Appeal (CFA) made a controversial decision on the debate of the right to abode of the mainland Chinese in the HKSAR. As a result, the HKSAR government asked the National People's Congress (NPC) to interpret the provisions of Hong Kong's Basic Law. This debate on the right to abode became highly politicized, polarized, and distorted. This chapter focuses on the debate over the right to abode in 1999 as a case study that can shed light on the problems and issues of judicial autonomy in HKSAR. This chapter argues that to maintain the judicial autonomy of HKSAR, several political actors should establish constitutional conventions or a habit of self-restraint.Less
In January 1999, the Court of Final Appeal (CFA) made a controversial decision on the debate of the right to abode of the mainland Chinese in the HKSAR. As a result, the HKSAR government asked the National People's Congress (NPC) to interpret the provisions of Hong Kong's Basic Law. This debate on the right to abode became highly politicized, polarized, and distorted. This chapter focuses on the debate over the right to abode in 1999 as a case study that can shed light on the problems and issues of judicial autonomy in HKSAR. This chapter argues that to maintain the judicial autonomy of HKSAR, several political actors should establish constitutional conventions or a habit of self-restraint.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0009
- Subject:
- Political Science, Comparative Politics
This conclusionary chapter explores the implications of the Postmaterialist Trigger Thesis (PTT) of bill of rights institutionalization beyond the four Westminster democracies from whose experience ...
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This conclusionary chapter explores the implications of the Postmaterialist Trigger Thesis (PTT) of bill of rights institutionalization beyond the four Westminster democracies from whose experience it was developed. The first half of the chapter examines the wider direct applicability of the PTT, arguing that it should fit other instances of deliberate bill of rights institutionalization in internally stable, advanced democracies. The genesis of the Israeli Basic Laws on human rights (1992) is explored as an exemplar case. The second part considers the broader relevance of the PTT. It argues that the PTT's focus on the importance of political triggers in stable, advanced democratic settings importantly mirrors the emphasis on political transition within less‐stable settings. Finally, the book explores the postmaterialist conceptions of rights and bills of rights arguing that, in contrast to classic liberalism, these conceptions are not based on a presumption of State non‐interference. In fact, such conceptions have encouraged a reorientation of human rights so as to accommodate and, on occasion, even require State action. At the extreme, and despite their very different long‐term historical origins, postmaterialist bills of rights may become co‐opted into the State‐directed audit and risk management explosion which has become a hallmark of advanced industrialized democracy.Less
This conclusionary chapter explores the implications of the Postmaterialist Trigger Thesis (PTT) of bill of rights institutionalization beyond the four Westminster democracies from whose experience it was developed. The first half of the chapter examines the wider direct applicability of the PTT, arguing that it should fit other instances of deliberate bill of rights institutionalization in internally stable, advanced democracies. The genesis of the Israeli Basic Laws on human rights (1992) is explored as an exemplar case. The second part considers the broader relevance of the PTT. It argues that the PTT's focus on the importance of political triggers in stable, advanced democratic settings importantly mirrors the emphasis on political transition within less‐stable settings. Finally, the book explores the postmaterialist conceptions of rights and bills of rights arguing that, in contrast to classic liberalism, these conceptions are not based on a presumption of State non‐interference. In fact, such conceptions have encouraged a reorientation of human rights so as to accommodate and, on occasion, even require State action. At the extreme, and despite their very different long‐term historical origins, postmaterialist bills of rights may become co‐opted into the State‐directed audit and risk management explosion which has become a hallmark of advanced industrialized democracy.
Donald P. Kommers
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199226474
- eISBN:
- 9780191706707
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199226474.003.0005
- Subject:
- Law, Comparative Law
Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in ...
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Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in influence and prestige around the world. So when the day of unity finally arrived in 1990, East and West Germany merged under the imprint of the Basic Law itself. Today, in both structure and substance, although frequently amended, it remains the constitutional text of reunited Germany. This chapter discusses the constitutive assembly of Germany, constituent power and reunification, general features of the Basic Law, supremacy of the constitution, constitutional structure, amending process, the Federal Constitutional Court, problems of constitutional interpretation, conception of the constitution, negative and positive rights, horizontality of rights, sources of interpretation, approaches to interpretation, the civil law tradition, and style of judicial decision-making.Less
Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in influence and prestige around the world. So when the day of unity finally arrived in 1990, East and West Germany merged under the imprint of the Basic Law itself. Today, in both structure and substance, although frequently amended, it remains the constitutional text of reunited Germany. This chapter discusses the constitutive assembly of Germany, constituent power and reunification, general features of the Basic Law, supremacy of the constitution, constitutional structure, amending process, the Federal Constitutional Court, problems of constitutional interpretation, conception of the constitution, negative and positive rights, horizontality of rights, sources of interpretation, approaches to interpretation, the civil law tradition, and style of judicial decision-making.
Ian Scott
- Published in print:
- 2010
- Published Online:
- September 2011
- ISBN:
- 9789622091726
- eISBN:
- 9789882207578
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622091726.003.0014
- Subject:
- History, Political History
A constitution is defined as the definitive and legally-binding rules and principles governing a state or a country. Constitution is significant as it describes the power and functions of government ...
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A constitution is defined as the definitive and legally-binding rules and principles governing a state or a country. Constitution is significant as it describes the power and functions of government bodies and outlines the relationship existing between these government bodies. In addition, constitution provides the authority for the decisions of the government and assures the government of the legitimacy of its rule. Constitution also specifies the limitations and the accountability of the government as well as reflecting the aspirations and values of the people. Constitution also serves as a staunch guard of civil liberties when the country and its freedom are threatened by encroachments. This chapter is mainly concerned with the degree to which the Basic Law establishes a framework of political accountability. In this chapter, the extent of accountability of the government for its actions and issues regarding the legitimacy of its exercised power are discussed and analysed. The chapter also discusses whether the Basic Law precisely describes the manner with which the political and administrative system actually operates. Discussed herein are issues regarding the accurate description of the relationship and powers of various governmental institutions. The chapter also tackles the capacity of the Basic Law to safeguard and uphold civil liberties as well as controversies and problems on the interpretation and implementation of the Basic Law.Less
A constitution is defined as the definitive and legally-binding rules and principles governing a state or a country. Constitution is significant as it describes the power and functions of government bodies and outlines the relationship existing between these government bodies. In addition, constitution provides the authority for the decisions of the government and assures the government of the legitimacy of its rule. Constitution also specifies the limitations and the accountability of the government as well as reflecting the aspirations and values of the people. Constitution also serves as a staunch guard of civil liberties when the country and its freedom are threatened by encroachments. This chapter is mainly concerned with the degree to which the Basic Law establishes a framework of political accountability. In this chapter, the extent of accountability of the government for its actions and issues regarding the legitimacy of its exercised power are discussed and analysed. The chapter also discusses whether the Basic Law precisely describes the manner with which the political and administrative system actually operates. Discussed herein are issues regarding the accurate description of the relationship and powers of various governmental institutions. The chapter also tackles the capacity of the Basic Law to safeguard and uphold civil liberties as well as controversies and problems on the interpretation and implementation of the Basic Law.
Benny Y. T. Tai
- Published in print:
- 2007
- Published Online:
- September 2011
- ISBN:
- 9789622098299
- eISBN:
- 9789882206779
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622098299.003.0004
- Subject:
- History, World Modern History
This chapter deals with the fundamental principles of the Hong Kong Special Administrative Region's (HKSAR's) legal system, which include the common law system, rule of law, judicial independence, ...
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This chapter deals with the fundamental principles of the Hong Kong Special Administrative Region's (HKSAR's) legal system, which include the common law system, rule of law, judicial independence, and the protection of human rights. It explores the two new institutional arrangements that were introduced after the handover, namely the power of final adjudication (vested with the Court of Final Appeal) and the power of the Standing Committee of the National People's Congress (SCNPC), to interpret the Basic Law. The chapter then argues that the SCNPC's power to interpret the Basic Law has established an institutional link between the HKSAR legal system and the Chinese legal system. Furthermore, the impact of SCNPC's interpretation of the Basic Law on the HKSAR courts is investigated. It is noted that the judiciary is able to maintain the principle of rule of law and human rights of the Hong Kong people if matters it adjudicates do not involve the interests of the central authorities. The Hong Kong judiciary is as powerless as the citizen who has started the judicial review proceeding. In the long run, judicial autonomy in Hong Kong will be hurt by more frequent interpretation of the Basic Law by the SCNPC.Less
This chapter deals with the fundamental principles of the Hong Kong Special Administrative Region's (HKSAR's) legal system, which include the common law system, rule of law, judicial independence, and the protection of human rights. It explores the two new institutional arrangements that were introduced after the handover, namely the power of final adjudication (vested with the Court of Final Appeal) and the power of the Standing Committee of the National People's Congress (SCNPC), to interpret the Basic Law. The chapter then argues that the SCNPC's power to interpret the Basic Law has established an institutional link between the HKSAR legal system and the Chinese legal system. Furthermore, the impact of SCNPC's interpretation of the Basic Law on the HKSAR courts is investigated. It is noted that the judiciary is able to maintain the principle of rule of law and human rights of the Hong Kong people if matters it adjudicates do not involve the interests of the central authorities. The Hong Kong judiciary is as powerless as the citizen who has started the judicial review proceeding. In the long run, judicial autonomy in Hong Kong will be hurt by more frequent interpretation of the Basic Law by the SCNPC.
Nathan J. Brown
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780520237629
- eISBN:
- 9780520937789
- Item type:
- chapter
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520237629.003.0003
- Subject:
- History, Middle East History
The Palestinian constitution can regulate and define its community. Palestinian constitutional efforts have often operated at cross-purposes, which explains why so many constitutions have been ...
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The Palestinian constitution can regulate and define its community. Palestinian constitutional efforts have often operated at cross-purposes, which explains why so many constitutions have been drafted for Palestine without being promulgated. Palestinian elections were unobtainable in wartime conditions, so prominent individuals and leaders of various Palestinian organizations and groups were asked to join the council in Gaza under Egyptian control. The leadership of the PNA ignored the effort to write a Basic Law throughout 1995, and instead negotiated issues of constitutional structure with the Israelis. The Palestinians attempted to obtain Israeli agreement to symbolic and structural aspects of statehood in matters of internal governance. The agreement offered something to both sides but also left a considerable measure of ambiguity in the final document, which reflected on Palestinian suggestions.Less
The Palestinian constitution can regulate and define its community. Palestinian constitutional efforts have often operated at cross-purposes, which explains why so many constitutions have been drafted for Palestine without being promulgated. Palestinian elections were unobtainable in wartime conditions, so prominent individuals and leaders of various Palestinian organizations and groups were asked to join the council in Gaza under Egyptian control. The leadership of the PNA ignored the effort to write a Basic Law throughout 1995, and instead negotiated issues of constitutional structure with the Israelis. The Palestinians attempted to obtain Israeli agreement to symbolic and structural aspects of statehood in matters of internal governance. The agreement offered something to both sides but also left a considerable measure of ambiguity in the final document, which reflected on Palestinian suggestions.
Sonny Shiu-Hing Lo
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622099081
- eISBN:
- 9789882207547
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622099081.003.0006
- Subject:
- History, Political History
This chapter explores the overall implementation of the Basic Law in Hong Kong and discusses the developing conventions prevailing in the Beijing-HKSAR relations. By evaluating the content of the ...
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This chapter explores the overall implementation of the Basic Law in Hong Kong and discusses the developing conventions prevailing in the Beijing-HKSAR relations. By evaluating the content of the Basic Law and its implementation, the new practices and conventions in the Beijing-HKSAR relations can be defined and outlined. Moreover, the chapter discusses the difficulties and dilemmas posed by the developing mainland Chinese conventions on the relationship between Beijing and Hong Kong.Less
This chapter explores the overall implementation of the Basic Law in Hong Kong and discusses the developing conventions prevailing in the Beijing-HKSAR relations. By evaluating the content of the Basic Law and its implementation, the new practices and conventions in the Beijing-HKSAR relations can be defined and outlined. Moreover, the chapter discusses the difficulties and dilemmas posed by the developing mainland Chinese conventions on the relationship between Beijing and Hong Kong.
Simon N. M. Young and Richard Cullen
- Published in print:
- 2010
- Published Online:
- September 2011
- ISBN:
- 9789888028399
- eISBN:
- 9789882206908
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789888028399.003.0003
- Subject:
- History, World Modern History
This chapter examines the constitutional and wider political significance of the Election Committee (EC) in the Hong Kong Special Administrative Region (HKSAR). It investigates the relationship ...
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This chapter examines the constitutional and wider political significance of the Election Committee (EC) in the Hong Kong Special Administrative Region (HKSAR). It investigates the relationship between the EC and the operation of the executive in Hong Kong and analyzes the association between the EC and the Legislative Council. The findings indicate that the EC system lacked real political legitimacy from the time of its inclusion in the Basic Law and that the EC system has done little to remedy its clear shortcomings.Less
This chapter examines the constitutional and wider political significance of the Election Committee (EC) in the Hong Kong Special Administrative Region (HKSAR). It investigates the relationship between the EC and the operation of the executive in Hong Kong and analyzes the association between the EC and the Legislative Council. The findings indicate that the EC system lacked real political legitimacy from the time of its inclusion in the Basic Law and that the EC system has done little to remedy its clear shortcomings.
Mary Elise Sarotte
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691163710
- eISBN:
- 9781400852307
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691163710.003.0005
- Subject:
- History, European Modern History
This chapter focuses on the prefab model, which was proposed by the Western allies in 1990. The United States and West Germany convincingly made the case for taking the West's prefabricated ...
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This chapter focuses on the prefab model, which was proposed by the Western allies in 1990. The United States and West Germany convincingly made the case for taking the West's prefabricated institutions, both for domestic order and international economic and military cooperation, and simply extending them eastward. This institutional-transfer model had the advantage of being quick, and dealing in known and successful commodities, such as the West German Basic Law, the West German currency (or DM), and the Article 5 mutual defense guarantee of NATO, to name a few. Indeed, the fact that both the European Community (EC) and the North Atlantic Treaty Organization (NATO) were structurally capable of expansion provided useful precedents. Ultimately, the prefab model was the one model that proposed to harmonize both domestic and international institutions in Eastern Europe to preset Western standards.Less
This chapter focuses on the prefab model, which was proposed by the Western allies in 1990. The United States and West Germany convincingly made the case for taking the West's prefabricated institutions, both for domestic order and international economic and military cooperation, and simply extending them eastward. This institutional-transfer model had the advantage of being quick, and dealing in known and successful commodities, such as the West German Basic Law, the West German currency (or DM), and the Article 5 mutual defense guarantee of NATO, to name a few. Indeed, the fact that both the European Community (EC) and the North Atlantic Treaty Organization (NATO) were structurally capable of expansion provided useful precedents. Ultimately, the prefab model was the one model that proposed to harmonize both domestic and international institutions in Eastern Europe to preset Western standards.
Christine Loh
- Published in print:
- 2010
- Published Online:
- September 2011
- ISBN:
- 9789888028948
- eISBN:
- 9789882207653
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789888028948.003.0023
- Subject:
- History, Asian History
This chapter offers an explanation on the shaping of post-Colonial Hong Kong from 1983 to 1989. It starts by presenting the issue of internal reorganisation. In addition, a special kind of united ...
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This chapter offers an explanation on the shaping of post-Colonial Hong Kong from 1983 to 1989. It starts by presenting the issue of internal reorganisation. In addition, a special kind of united front work is shown. After the Sino-British Joint Declaration was signed, Hong Kong entered into its transitional phase to Chinese rule. The most important task was to prevent any opposition to the resumption of sovereignty, and the second was to ensure Hong Kong continued to support the Mainland economically and financially. A third important task was to nurture a group of “status markers” who could populate the post-1997 political system under Chinese rule. The Basic Law drafting instructions and strategy, as well as the Basic Law Drafting Committee and Basic Law Consultative Committee are explored. Finally, the events that took place at Tiananmen Square are highlighted.Less
This chapter offers an explanation on the shaping of post-Colonial Hong Kong from 1983 to 1989. It starts by presenting the issue of internal reorganisation. In addition, a special kind of united front work is shown. After the Sino-British Joint Declaration was signed, Hong Kong entered into its transitional phase to Chinese rule. The most important task was to prevent any opposition to the resumption of sovereignty, and the second was to ensure Hong Kong continued to support the Mainland economically and financially. A third important task was to nurture a group of “status markers” who could populate the post-1997 political system under Chinese rule. The Basic Law drafting instructions and strategy, as well as the Basic Law Drafting Committee and Basic Law Consultative Committee are explored. Finally, the events that took place at Tiananmen Square are highlighted.
Arthur B. Gunlicks
- Published in print:
- 2003
- Published Online:
- July 2012
- ISBN:
- 9780719065323
- eISBN:
- 9781781700464
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719065323.003.0003
- Subject:
- Political Science, European Union
As in the case of the American states, the Länder in Germany existed before the federation. But, unlike the United States, there is no legal controversy in Germany over the role of the states as ...
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As in the case of the American states, the Länder in Germany existed before the federation. But, unlike the United States, there is no legal controversy in Germany over the role of the states as opposed to the ‘people’ in creating the federation. Representatives from the Länder met at Herrenchiemsee in 1948 to draft the new constitution and formed the Parliamentary Council, which negotiated with the Allies over the final text in 1949. The German Constitution, or Basic Law, was then approved by the parliaments of the Länder (except Bavaria) rather than by popular referendum. This chapter explores the theory and constitutional framework of German federalism, first considering the controversy over the location of sovereignty between two tiers of government or, at the very least, over the proper distribution of powers between them. It then discusses the separation of powers between the legislature, executive and judiciary, and finally examines the organisation of the judiciary.Less
As in the case of the American states, the Länder in Germany existed before the federation. But, unlike the United States, there is no legal controversy in Germany over the role of the states as opposed to the ‘people’ in creating the federation. Representatives from the Länder met at Herrenchiemsee in 1948 to draft the new constitution and formed the Parliamentary Council, which negotiated with the Allies over the final text in 1949. The German Constitution, or Basic Law, was then approved by the parliaments of the Länder (except Bavaria) rather than by popular referendum. This chapter explores the theory and constitutional framework of German federalism, first considering the controversy over the location of sovereignty between two tiers of government or, at the very least, over the proper distribution of powers between them. It then discusses the separation of powers between the legislature, executive and judiciary, and finally examines the organisation of the judiciary.
Simon N. M. Young and Richard Cullen
- Published in print:
- 2010
- Published Online:
- September 2011
- ISBN:
- 9789888028399
- eISBN:
- 9789882206908
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789888028399.003.0004
- Subject:
- History, World Modern History
This chapter examines the system of election of the 800 members of the Election Committee in the Hong Kong Special Administrative Region (HKSAR). It explains that the Basic Law provides no more than ...
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This chapter examines the system of election of the 800 members of the Election Committee in the Hong Kong Special Administrative Region (HKSAR). It explains that the Basic Law provides no more than general parameters and principles of design and that China left details of the electoral system to be worked out and implemented by the Hong Kong Government and Hong Kong people. It analyzes detailed empirical and historical data collected in respect of the voters, delineation of sectors and subsectors and members of the EC.Less
This chapter examines the system of election of the 800 members of the Election Committee in the Hong Kong Special Administrative Region (HKSAR). It explains that the Basic Law provides no more than general parameters and principles of design and that China left details of the electoral system to be worked out and implemented by the Hong Kong Government and Hong Kong people. It analyzes detailed empirical and historical data collected in respect of the voters, delineation of sectors and subsectors and members of the EC.
Jo Eric Khushal Murkens
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199671885
- eISBN:
- 9780191751196
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199671885.003.0007
- Subject:
- Law, Constitutional and Administrative Law, Legal History
This chapter looks at the way the Federal Constitutional Court has interpreted the provisions of the Basic Law that deal with European integration. Three questions need to be clarified. First, what ...
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This chapter looks at the way the Federal Constitutional Court has interpreted the provisions of the Basic Law that deal with European integration. Three questions need to be clarified. First, what is the constitutional foundation for European Union membership? Second, what are the constitutional limits to European integration? Do elements of the Basic Law’s structure prevent national and European institutions from carrying through further legal integration at European Union level? Third, by what mechanism Germany could give itself a new constitution to overcome the limits? What is the relevance and scope of Articles 79 and 146 GG in the process of European integration? And what is the role of the Court in policing that mechanism? Answers to the above questions necessitate an inquiry not just into the case law of the Federal Constitutional Court but also into the genesis and gist of Germany’s Basic Law.Less
This chapter looks at the way the Federal Constitutional Court has interpreted the provisions of the Basic Law that deal with European integration. Three questions need to be clarified. First, what is the constitutional foundation for European Union membership? Second, what are the constitutional limits to European integration? Do elements of the Basic Law’s structure prevent national and European institutions from carrying through further legal integration at European Union level? Third, by what mechanism Germany could give itself a new constitution to overcome the limits? What is the relevance and scope of Articles 79 and 146 GG in the process of European integration? And what is the role of the Court in policing that mechanism? Answers to the above questions necessitate an inquiry not just into the case law of the Federal Constitutional Court but also into the genesis and gist of Germany’s Basic Law.
Arthur B. Gunlicks
- Published in print:
- 2003
- Published Online:
- July 2012
- ISBN:
- 9780719065323
- eISBN:
- 9781781700464
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719065323.003.0005
- Subject:
- Political Science, European Union
For almost forty years after the federal constitution went into effect, little attention was paid to state (Land) constitutions in Germany. At the end of the 1980s and the beginning of the 1990s, ...
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For almost forty years after the federal constitution went into effect, little attention was paid to state (Land) constitutions in Germany. At the end of the 1980s and the beginning of the 1990s, this changed dramatically, for two major reasons. A scandal in Schleswig-Holstein in 1987 involving allegations that the prime minister had been guilty of a serious abuse of power (the Barschel/Pfeiffer affair) led to a thorough revision of that Land constitution, which included both far-reaching plebiscitary (direct democracy) features and provisions strengthening the parliament's control over the government (cabinet). The second cause of a strong interest in Land constitutions was the collapse of the Berlin Wall, the re-emergence of five Länder that had ceased to exist in 1952, and the unification of Germany in October 1990. This chapter discusses the Land constitutions in Germany, the Basic Law and the Länder, origins and legal framework of Land constitutions, and Land parliaments and legislation. It also examines Land executives, judiciaries and social institutions, as well as basic rights, social rights and state goals.Less
For almost forty years after the federal constitution went into effect, little attention was paid to state (Land) constitutions in Germany. At the end of the 1980s and the beginning of the 1990s, this changed dramatically, for two major reasons. A scandal in Schleswig-Holstein in 1987 involving allegations that the prime minister had been guilty of a serious abuse of power (the Barschel/Pfeiffer affair) led to a thorough revision of that Land constitution, which included both far-reaching plebiscitary (direct democracy) features and provisions strengthening the parliament's control over the government (cabinet). The second cause of a strong interest in Land constitutions was the collapse of the Berlin Wall, the re-emergence of five Länder that had ceased to exist in 1952, and the unification of Germany in October 1990. This chapter discusses the Land constitutions in Germany, the Basic Law and the Länder, origins and legal framework of Land constitutions, and Land parliaments and legislation. It also examines Land executives, judiciaries and social institutions, as well as basic rights, social rights and state goals.
Ma Nagok
- Published in print:
- 2007
- Published Online:
- September 2011
- ISBN:
- 9789622098107
- eISBN:
- 9789882207271
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622098107.003.0004
- Subject:
- History, Political History
As revealed by the developments in Hong Kong after 1997, an autocratic state is not necessarily strong, since the post-colonial era rendered the institutional logic of the Basic Law's executive ...
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As revealed by the developments in Hong Kong after 1997, an autocratic state is not necessarily strong, since the post-colonial era rendered the institutional logic of the Basic Law's executive dominance useless. The executive-dominant system stipulated by the Basic Law provides the chief executive (CE) and the executive branch with powers for policy making. The absence of a governing party, the governing elite's low cohesion, and the fragmented state institutional powers weakened the state's capacity and brought about the fragmentation of political power. This chapter adopts an institutional perspective in examining the fragmentation as conflicts were revealed to have appeared because of the executive branch's incongruities and the lack of a political party.Less
As revealed by the developments in Hong Kong after 1997, an autocratic state is not necessarily strong, since the post-colonial era rendered the institutional logic of the Basic Law's executive dominance useless. The executive-dominant system stipulated by the Basic Law provides the chief executive (CE) and the executive branch with powers for policy making. The absence of a governing party, the governing elite's low cohesion, and the fragmented state institutional powers weakened the state's capacity and brought about the fragmentation of political power. This chapter adopts an institutional perspective in examining the fragmentation as conflicts were revealed to have appeared because of the executive branch's incongruities and the lack of a political party.
Ian Scott
- Published in print:
- 2010
- Published Online:
- September 2011
- ISBN:
- 9789622091726
- eISBN:
- 9789882207578
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622091726.003.0019
- Subject:
- History, Political History
The Basic Law provides only a general framework for the organisation of the Hong Kong government and has less to say on the public sector beyond the civil service. In the Basic Law of Hong Kong the ...
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The Basic Law provides only a general framework for the organisation of the Hong Kong government and has less to say on the public sector beyond the civil service. In the Basic Law of Hong Kong the functions and power of the Chief Executive is accurately described whereas some of the government departments such as the Police, Immigration, and Customs and Excise are mentioned in the Basic Law but are not described in terms of their organisations and powers. Before and after 1997, Hong Kong upholds principles that define the organisation of its government. These principles are not as easily achieved as they might be supposed. At times, there exists a gap or difference between the way the government functions and the way it is expected to operate. The Hong Kong government has always been subject to issues such as corruption, authority, economic conditions, political neutrality, and several political issues that influence the structure of the government. This chapter examines the formal structure and functions of the Hong Kong government. It examines the way the Hong Kong government should operate and assesses the government practices that deviated from the first three principles of the Hong Kong government.Less
The Basic Law provides only a general framework for the organisation of the Hong Kong government and has less to say on the public sector beyond the civil service. In the Basic Law of Hong Kong the functions and power of the Chief Executive is accurately described whereas some of the government departments such as the Police, Immigration, and Customs and Excise are mentioned in the Basic Law but are not described in terms of their organisations and powers. Before and after 1997, Hong Kong upholds principles that define the organisation of its government. These principles are not as easily achieved as they might be supposed. At times, there exists a gap or difference between the way the government functions and the way it is expected to operate. The Hong Kong government has always been subject to issues such as corruption, authority, economic conditions, political neutrality, and several political issues that influence the structure of the government. This chapter examines the formal structure and functions of the Hong Kong government. It examines the way the Hong Kong government should operate and assesses the government practices that deviated from the first three principles of the Hong Kong government.
Christoph Goos
- Published in print:
- 2013
- Published Online:
- January 2015
- ISBN:
- 9780197265642
- eISBN:
- 9780191760389
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265642.003.0003
- Subject:
- Law, Human Rights and Immigration
Historical considerations have so far played a rather subordinate role in the interpretation of Article 1 German Basic Law. This is unfortunate, because the records of the proceedings of the ...
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Historical considerations have so far played a rather subordinate role in the interpretation of Article 1 German Basic Law. This is unfortunate, because the records of the proceedings of the Parliamentary Council show clearly that the famous dictum on Würde des Menschen as a ‘non-interpreted thesis’ (Theodor Heuss) was neither meant to be a carte blanche for any arbitrary interpretation nor an evidence for the impossibility of all kinds of interpretation. The ‘mothers and fathers of the Basic Law’ discussed the meaning of the legal term Würde des Menschen intensely. They agreed that it was neither a more or less vague value assignment nor just the sum of the following basic rights but a real capacity of human beings that had been proven highly vulnerable during the Nazi regime: the inner freedom of man.Less
Historical considerations have so far played a rather subordinate role in the interpretation of Article 1 German Basic Law. This is unfortunate, because the records of the proceedings of the Parliamentary Council show clearly that the famous dictum on Würde des Menschen as a ‘non-interpreted thesis’ (Theodor Heuss) was neither meant to be a carte blanche for any arbitrary interpretation nor an evidence for the impossibility of all kinds of interpretation. The ‘mothers and fathers of the Basic Law’ discussed the meaning of the legal term Würde des Menschen intensely. They agreed that it was neither a more or less vague value assignment nor just the sum of the following basic rights but a real capacity of human beings that had been proven highly vulnerable during the Nazi regime: the inner freedom of man.
T.R.S. Allan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.003.0006
- Subject:
- Law, Philosophy of Law
This chapter offers a view of Alexy's study of the German Basic Law which treats it as an account, more broadly, of the ideal of the rule of law, given appropriate shape as a theory of ...
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This chapter offers a view of Alexy's study of the German Basic Law which treats it as an account, more broadly, of the ideal of the rule of law, given appropriate shape as a theory of constitutionalism. Doubting whether there is any difference, at the most fundamental level, between written and unwritten constitutions, it suggests that both German and British constitutions should be seen as instantiations of an underlying model of liberal-democratic constitutionalism. Since our concept of law embodies that ideal — the ideal of morally justified authority, such as could be acknowledged, in principle, by all those subject to it — we cannot neatly separate questions of legal authority from questions of constitutional right. The limits of the state's authority are set by our best understanding of what the basic rights of liberty, equality, and respect for human dignity require. Rules or decisions that violate those principles therefore carry no genuine, but only purported, authority; and there is an inherent jurisdiction, deriving from the duty of courts to apply the law, to draw such conclusions in appropriate cases.Less
This chapter offers a view of Alexy's study of the German Basic Law which treats it as an account, more broadly, of the ideal of the rule of law, given appropriate shape as a theory of constitutionalism. Doubting whether there is any difference, at the most fundamental level, between written and unwritten constitutions, it suggests that both German and British constitutions should be seen as instantiations of an underlying model of liberal-democratic constitutionalism. Since our concept of law embodies that ideal — the ideal of morally justified authority, such as could be acknowledged, in principle, by all those subject to it — we cannot neatly separate questions of legal authority from questions of constitutional right. The limits of the state's authority are set by our best understanding of what the basic rights of liberty, equality, and respect for human dignity require. Rules or decisions that violate those principles therefore carry no genuine, but only purported, authority; and there is an inherent jurisdiction, deriving from the duty of courts to apply the law, to draw such conclusions in appropriate cases.
Lam Wai-man
- Published in print:
- 2007
- Published Online:
- September 2011
- ISBN:
- 9789622098299
- eISBN:
- 9789882206779
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622098299.003.0001
- Subject:
- History, World Modern History
This chapter summarizes the general context of changes in Hong Kong since 1997. It begins by emphasizing the Sino-British negotiations and the Basic Law. The relationship between Hong Kong and ...
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This chapter summarizes the general context of changes in Hong Kong since 1997. It begins by emphasizing the Sino-British negotiations and the Basic Law. The relationship between Hong Kong and China, and Hong Kong's global relations are also discussed. Its global relations are particularly important with regard to Taiwan, where the Special Administrative Region (SAR) serves at least two political functions. On the one hand, Hong Kong was supposed to showcase “one country, two systems” to Taiwan. In addition, the government institutions are reported. The governing ideologies and public policy ethics are then considered. Furthermore, an overview of the chapters included in the book is provided.Less
This chapter summarizes the general context of changes in Hong Kong since 1997. It begins by emphasizing the Sino-British negotiations and the Basic Law. The relationship between Hong Kong and China, and Hong Kong's global relations are also discussed. Its global relations are particularly important with regard to Taiwan, where the Special Administrative Region (SAR) serves at least two political functions. On the one hand, Hong Kong was supposed to showcase “one country, two systems” to Taiwan. In addition, the government institutions are reported. The governing ideologies and public policy ethics are then considered. Furthermore, an overview of the chapters included in the book is provided.
