Search Results

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

This chapter details how, in its first half century, Israel shaped one citizenship regime and transitioned to a second. The Labor Party and Histadrut had introduced and institutionalized a system of stratification: Ashkenazim as first-class citizens, Mizrahim and women as second-class citizens, Palestinian Israelis as third-class citizens, and the inequality of non-Orthodox Judaism. The advent of unfettered capitalism, a burgeoning civil society, and a nascent constitution in the form of Basic Laws reinforced, rather than removed, the “ethnic hierarchy.” Similarly, the inequality of women and non-Orthodox Judaism persisted. The Israel that initially had tried to regenerate immigrants for the Zionist project was in fact engaged in a larger and even more challenging emancipation process. Indeed, Israel now found itself in desperate need of the “auto-emancipation” that had been Zionism's raison d'être. For Israel's success, sovereignty was necessary but not sufficient; equality was also a sine qua non. To become a state of equal citizens, Israel had to free itself from an entrenched structure of inequalities and disabilities, of second- and third-class citizens, of an official or established religion and unrecognized, inferior forms of Judaism.

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.