• Tuesday, August 4, 2020

Rule of Law: Common law backward and inferior?

Discussion in 'China & Far East' started by Song Hong, Jan 14, 2020.

  1. Song Hong

    Song Hong FULL MEMBER

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    I start this thread to discuss Hong Kong rule of law as well as entire common law system. Is common law inferior to civil law or China socialist law system?

    *****************************

    China’s top legislative affairs body has slammed a ruling by the Hong Kong High Court declaring the recently imposed emergency anti-mask law unconstitutional, insisting that only the national legislature has the right to decide on issues of constitutionality.

    According to the state-run Xinhua news agency, Zang, speaking on behalf of the NPCSC’s Legislative Affairs Commission, said the national legislature was the only body that could decide whether Hong Kong laws complied with the Basic Law, which provides the legal underpinnings for post-handover Hong Kong.

    The mask ban in Hong Kong took effect on October 5, but the way it was imposed through emergency powers was ruled unconstitutional by High Court judges on Monday. The mask ban in Hong Kong took effect on October 5, but the way it was imposed through emergency powers was ruled unconstitutional by High Court judges on Monday.

    China’s top legislative affairs body has slammed a ruling by the Hong Kong High Court declaring the recently imposed emergency anti-mask law unconstitutional, insisting that only the national legislature has the right to decide on issues of constitutionality.

    In a stern rebuke that stunned the legal fraternity on Tuesday on its implications, the body’s spokesman, Zang Tiewei, said the High Court ruling “did not comply” with aspects of Hong Kong’s mini-constitution, the Basic Law, and the position of the National People’s Congress Standing Committee (NPCSC), the apex of the legislature.

    According to the state-run Xinhua news agency, Zang, speaking on behalf of the NPCSC’s Legislative Affairs Commission, said the national legislature was the only body that could decide whether Hong Kong laws complied with the Basic Law, which provides the legal underpinnings for post-handover Hong Kong.

    “[China’s] constitution and the Basic Law jointly form the constitutional foundation of [Hong Kong],” he said. “Whether Hong Kong’s laws are consistent with the Basic Law can only be judged and decided by the NPCSC. No other authority has the right to make judgments and decisions.”

    The move had also “weakened” the administrative power of the city’s leader, Zang said.

    In separate statements, Yang Guang, spokesman of the State Council’s Hong Kong and Macau Affairs Office (HKMAO), Beijing’s highest policy office on Hong Kong matters, warned the court ruling would have a “serious and negative sociopolitical impact”. A spokesman for Beijing’s liaison office in Hong Kong too weighed in, urging the city’s executive, legislative and judicial branches to respect the NPCSC’s decisions when exercising their power.

    Hong Kong’s first postcolonial chief justice Andrew Li Kwok-nang expressed fears in an interview with the Post, saying the comments coming from Beijing would be “surprising and alarming” if it meant local courts had no power to hold the city’s legislation to be invalid based on inconsistency.


    https://www.scmp.com/news/hong-kong...ng-judges-slammed-chinas-top-legislative-body
     
    Last edited: Jan 14, 2020
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  2. KungFuLee

    KungFuLee FULL MEMBER

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    What is "inferior"? How did you define one legal system is more inferior than the other?

    Law and Legal system is used to serve a community. Depends on its citizens acceptability, a law system can be well suited or ill prepare or both toward a country. In this case, in Hong Kong, common law is a suited system in Hong Kong, however, if you were to use Common Law system in China, that would not be appropriated.

    The essence of Common Law is precedent, which is based on previous ruling, and hence judgement are updated and can be adapted to in uncertainty. which give way to landmark decision to be a place in law.

    Law, in general are not perfect, and we need a system to constantly update with decision made, thus refining the legal system.

    On the other hand, if you see law as "Absolute" and for better or worse it would be a guideline to social and moral problem in a state, then a Civil Law type environment are warranted. Civil law heavily depends on interpretation, which mean if there are any uncertainty within the legal system, the court will ask for a "Interpretation" of the law and either on a tribunal based, or trial base resolution.

    So, do tell me which one is inferior in your term? Or how you define what is inferior?
     
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  3. Song Hong

    Song Hong FULL MEMBER

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    HK judges are absolutely corrupt, and it has a lot to do with common law system.

    In addition, HK basic law is subordinate to National People's Congress, and HK judges do not (or pretend not to) acknowledge who is their superior law authority. They rebelled.

    Common law is just an euphemism and evolution of barbaric feudal laws. It is often commented that the greatest achievement of Napoleon Bonaparte was the abolishment of common law (oops fuedal laws) in replacement of civil law.

    There must be a reason why abolishment of common law system in Continental Europe is so celebrated.

    I will discuss more.

     
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  4. KungFuLee

    KungFuLee FULL MEMBER

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    lol, who told you the Hong Kong Judge are corrupted? And no, Hong Kong legal system are guaranteed to be separated with the Mainland, regardless who told you otherwise, which mean Basic Law is a rough guideline to HK legal system as of now, but have no jurisdiction on Hong Kong Legal Structure.

    And no, there are no one superior or inferior in Common Law system, each court is in charge of a specific things, that is what Jurisdiction means. A supreme court judge cannot settle Trial Court issue, and a Appeal Judge cannot overstep on Superior Court verdict. Each function in a different way.

    And I don't think you actually know the difference.
     
  5. Song Hong

    Song Hong FULL MEMBER

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    This is what the arrogant HK legal professionals profess to have, but unfortunately they tremble when China gets angry. It is on the wall of Basic Law Chapter 8 article 158, that HK courts are subordinate. Boss is China.

    Lets go slowly.

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    Chapter VIII : Interpretation and Amendment of the Basic Law

    Article 158
    The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.

    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.

    The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.

    The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law.


     
  6. KungFuLee

    KungFuLee FULL MEMBER

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    First of all, who is in charge of Hong Kong have no bearing of which legal system is superior or inferior. In the first post, I ask you what is considered "Inferior" and til now, you still have not answer me this simple question.

    Now, onto your post

    Article 8 proclaim

    Article 8

    The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.

    Article 80

    The courts of the Hong Kong Special Administrative Region at all levels shall be the judiciary of the Region, exercising the judicial power of the Region.

    Article 81

    The Court of Final Appeal, the High Court, district courts, magistrates' courts and other special courts shall be established in the Hong Kong Special Administrative Region. The High Court shall comprise the Court of Appeal and the Court of First Instance.

    The judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the establishment of the Court of Final Appeal of the Hong Kong Special Administrative Region.

    Article 89

    A judge of court of the Hong Kong Special Administrative Region may only be removed for inability to discharge his or her duties, or for misbehaviour, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal and consisting of not fewer than three local judges.

    The Chief Justice of the Court of Final Appeal of the Hong Kong Special Administrative Region may be investigated only for inability to discharge his or her duties, or for misbehaviour, by a tribunal appointed by the Chief Executive and consisting of not fewer than five local judges and may be removed by the Chief Executive on the recommendation of the tribunal and in accordance with the procedures prescribed in this Law.

    While you are right, China is "The Boss" of Hong Kong, and hence the Basic Law shall be the law of Hong Kong. However, in Chapter 4 section 4 of the Basic Law, "the Boss" of Hong Kong granted the right of self determined legal system and more importantly, in article 8, "the Boss" proclaim that until said law is changed, the system in place would be THE system in place.

    So, yes and no, yes China is the Boss of Hong Kong, and no, Chinese does not have control of Hong Kong legal system.

    Again, all that have nothing to do with whether or not Common Law being superior or inferior, however, now I seriously doubt you know anything about Legal System...
     
  7. Song Hong

    Song Hong FULL MEMBER

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    Authority was given by NPA, they can take it way.

    And NPA interpretation is higher than HK court.
    ******************
    Chapter VIII : Interpretation and Amendment of the Basic Law

    Article 158

    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.


    before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress
     
  8. KungFuLee

    KungFuLee FULL MEMBER

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    Umm, no...…...

    They can amend Basic Law, however, Hong Kong is NOT operate under Basic Law, do you even read my post? Or you just try to blur your way out of an argument you know nothing about?

    Article 8 guarantee Hong Kong has it own legal system. Basic law is more like a constitution and not a legal system. Of course they can change the Basic law (which mean they can change article 8 in basic law) but that is not going to happen until after 2047, because that is guaranteed by the Joint Declaration in 1984.

    Also, all these have NOTHING TO DO with Common Law being superior and inferior LMFAO
     
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  9. Song Hong

    Song Hong FULL MEMBER

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    Chief Justice Andrew Li Kwok-nang did not have guts even go against article 158 and was humiliated in public. China can interpret it and sure they will do it differently from the western influenced legal workers in Hong Kong.

    I see almost no fundamental difference between common law and French pre revolution feudal laws. They are just patch works.

    Everyone glorify Napoleon for getting rid of common law in Europe so that wretched judge will be reined.

     
  10. KungFuLee

    KungFuLee FULL MEMBER

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    What didn't Li Kwog Nang have the guts to do?

    I think for you, you don't see different with every legal system there are in the world, actually, what do you know about Legal System? Can you tell me what is the central pillar of Civil Law legal system you so dearly praise? What is the Jurisprudence factor of the Civil law?

    And still you have not specifically tell me, what is inferior and what is superior?
     
  11. Song Hong

    Song Hong FULL MEMBER

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    Andrew Li got humiliated and almost resigned. He should have quitted then. He and later Geoffrey Ma are disgusting.

    https://www.scmp.com/article/668742/right-abode-cases-shook-hong-kong

    Ng Ka-ling and others vs Director of Immigration

    On February 26, 1999, the court clarified its ruling from January 29 at the request of the Hong Kong government, to make clear that it had not intended to challenge the power of the NPCSC.

    The interpretation by the NPCSC

    This was adopted on June 26, 1999. It stated that the Court of Final Appeal was wrong not to refer the right of abode cases to Beijing. The NPCSC declared, contrary to the court's judgment, that right of abode applicants required permission from mainland authorities before coming here. The one-way permit requirement was restored.

     
  12. KungFuLee

    KungFuLee FULL MEMBER

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    Do you even know the "Right of Adobe" saga? Let me tell you 2 things.

    1.) Immigration is a foreign affair because you never grant residence permit to local born Hong Konger, Residence Permit is always a foreign affair. And as per Basic Law, Hong Kong legislature do not have power to determine Foreign Affair.

    2.) Nationality issue is also Chinese Government responsibility, we are not Hong Kong Citizen, but rather Chinese Citizens in Hong Kong SAR. Unless you are suggesting that we can define what Chinese Nationality is, the sole responsibility of Hong Kong Residence and Chinese Nationality are within the NPC

    Also, the "explaining" basically reverse the CFA ruling and that is a good thing for Li, because it reinforced requirements for mainland exit procedures and restricted eligibility for the right of abode. Hence we no longer have 1.67 millions qualified for Hong Kong Residence.

    In term of Basic law, yes, it would have been better for them to amend rather than explain (because explanation can be vague) the Basic Law, but you cannot have the cake and eat it. Nobody can amend Basic law until after 2047, and if we don't want the Chinese to do that, it's only fair we cannot do that ourselves before said date as well.
     
    Last edited: Jan 14, 2020
  13. Paul2

    Paul2 FULL MEMBER

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    Yes
     
  14. Old School

    Old School SENIOR MEMBER

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    Common law was created and brought to HK by the British imperialist power. Why is this law still there ? like any other commonwealth judges, HK judges still serve their colonial masters in London. Common law is a symbol of British imperialism. Get rid of it and create fresh pro people laws.
     
  15. Paul2

    Paul2 FULL MEMBER

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