New PDF release: Hong Kong’s Constitutional Debate: Conflict Over

By Johannes M M Chan, H L Fu, Yash Ghai

ISBN-10: 9622095097

ISBN-13: 9789622095090

This ebook explores felony and constitutional concerns in Hong Kong’s dating with mainland China via an research of the litigation at the correct of dwelling house of the youngsters of Hong Kong citizens who're born and dwell within the mainland.

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Additional info for Hong Kong’s Constitutional Debate: Conflict Over Interpretation

Example text

His reasoning was endorsed by the CFA, which also advanced the suggestion that the basis of the agreement may have been pragmatism, rather than interpretation (354FG). How far can the court take consequences into account? Lay criticism of the courts, particularly the CFA, in the right of abode case has centred on the failure to take into account the consequences of the decision. The more liberal the interpretation of article 24(2)(3), the more the number of people who would come, or at least be entitled to come, to Hong Kong in an unregulated way, adding to pressure on social services and increasing unemployment.

He appreciated that the case had not been fully argued; there was no detailed review of the PRC Constitution; and his own decision was 'not a concluded view' (353B). In the end, many points of Chinese law were glossed over, or rather, an uninformed view was taken of them. On the evidence and argument before it, the court was unable to decide whether a resolution of the NPC necessarily had the force of law, whether it could delegate all its powers to subordinate bodies, and what the procedures for, or the effect of, ratification of the decision of a subordinate body were.

At that time it was assumed that the views of the court on these additional issues were obiter, that is not strictly binding on courts in the future (this was recognized expressly by Chan CJHC and Nazareth VP (353B), and designated so in the two law report series). However, when the legality of the Provisional LegCo was raised in the Court of First Instance in Cheung Lai Wah, Keith J held that he was bound by Ma but allowed submissions on the issue to be filed for arguments in the CA. To complete the story, the CA held that its ruling on legality was not obiter, as it was an essential ground for its decision, and nor was it per incuriam (that is, given in ignorance of a binding decision or statute).

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Hong Kong’s Constitutional Debate: Conflict Over Interpretation by Johannes M M Chan, H L Fu, Yash Ghai

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