Legal System Topic 3: Evolution of the Hong Kong legal System 1842 – 2012DM Summary - Part 2b2. Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic law pp.359-400 (DM P.11-22)

Consistency of previous laws with the Basic Law Necessary changes: technical, replacing colonial titles etc. 4 tasks in the adaptation of laws:

a) remove any implications of British sovereigntyb) remove anything that infringes Chinese sovereignty, e.g. China = foreign statec) insert Basic Law terminology e.g. Governor > Chief Executived) recognize institutional changes, e.g. titles of judges, names of courts

Initial review of the compatibility of laws-undertaken by the Preliminary Working Committee(PWC) in 1994 &1995-recommendation: 26 ordinances should be repealed in their entirely & 12 partially-PWC was more concerned with policy issues than with establishing inconsistencies with the Basic Law

The Decision provides a framework for the modification of lawsa) adopt previous lawsb) state how far the previous laws are to be qualified (repealed partly or totally)c) establish a general rule: conflict between national laws and Hong Kong law; national law shall prevaild) provide some general principles for modification of lawse) enact some rules for the interpretation of lawsf) set out rules for the substitution of “names, terms and expressions”

Repealed Laws 14 ordinances: repealed in their totality Did not eliminate redress against unlawful detention, since the Basic Law provide

relief against unlawful detention

General comments The Decision does not succeed fully in its task, which is to clarify the scope of the

application of previous laws-language is vague-use concepts whose precise meaning is not self-evident (cannot explain

NPCSC exceeded its jurisdiction under art.160

-function: declare any laws are inconsistent with the Basic Law-exceed: modify various laws (instead of mere declaring)

No reasons are given for declaring laws invalid NPCSC and their advisers may not have fully understood aspects of the common

law or the principles of the previous legal system Many issues of applicable laws or the extent of adopted laws are left open

The Hong Kong Reunification Ordinance Reproduce the NPCSC rules on the modification of laws and on the construction

of particular terms

The power of the HKSAR legislature to deal with ‘previous’ laws Previous laws remain in force subject to any amendment by the HKSAR

legislature Can be changed: the scope of permissible amendment may be determined by

other provisions of the Basic Law Amendment = laws cannot be repealed, merely altered