Legal System

THE UNIVERSITY OF HONG KONG
FACULTY OF LAW
BACHELOR OF LAWS PROGRAMME
THE LEGAL SYSTEM OF HONG KONG
2012-2013

FINAL EXAMINATION
(80% of Final Grade)

COVER SHEET

Student Number: __ 3035045281______

Word Count: Question 1: ____1197_____

Question 2: ____1198_____

Question 1

Lord Radcliffe considers the role of judges should be on the declaration of the law instead of creating law. According to the declaratory theory which is a classical notion: judges discover and declare law rather than invent or to create it. 1 It is different from the role of a legislator and should not be creative. Precedents are not declared only when they are incorrect.

However in reality judges do involve in creative roles in the adjudication, in common law development and the interpretation of statutes. In interpreting the statutes, judges can choose one interpretation way out of a few (e.g. literal, golden, mischief) that he or she considered as appropriate, involving creativity.

In According to Peter Wesley Smith, it is mentioned that law is not discovered but created.2 Judges changes, creating and making the law, and hence common law system is a judge-made law.3 It is now largely supported in reality that it should be realist theory where judges make law or at least, a wavicle theory where the courts consider sometimes it is better to make new law and sometimes it is better to quote old law.4 Judges, unlike members of legislative council, they are not elected by people to make the laws, and not democratic. It is claimed that it is not legitimate for judges to make laws. But in reality, using the judicial power to decide law in creative role is unavoidable.

Sometimes, the judges change and make laws, where exercise of judicial powers then come into conflict with powers of the legislature. If there is no precedent with similar material facts before, the courts have to make a decision but not referring it back to the legislative branch. 5 They have a risk of coming into the conflict no matter what decision is made.

When there is social change, judges would make the law. According to the Elliot & Quinn, Lord Denning mentioned that judges are too timid about adapting new law to changing conditions of society; judges should change the law when it comes to social changes. Lord Scarman, again mentioned that “Courts function is to adjudicate according to principle and if the result are socially unacceptable, Parliament can legislate to overrule them.” 6 It is legislation’s job to change it if it is socially unacceptable. During these times, the judicial power comes into conflict with legislature power.

When protecting rights of the minorities, judges can used their discretion within taking more responsibility for developing common law in accordance with contemporary values, Judges can establish protection for the individual against the misuse of power by Anthony Lester QC.7

For constitutional review of law, there will be conflict between two powers. In the case of Leung TC William Roy v Secretary8 for Justice, the judge decided that the Crime Ordinance Section 118 C, F, H, J violates the basic law and Hong Kong Bill of Rights Ordinance, being unconstitutional. Moreover, it is also discriminatory towards homosexual. Hence, court made a decision different from the legislation where the law is passed. In the several cases after the judgement of Leung TC William, for example, Secretary for Justice v. Yau Yuk Lung Zigo9, again refer the Section 118 as unconstitutional and dismissed the charges. This kind of judicial power comes into the conflict with the legislature, deciding the case in different view from the legislature in cases where the law is unconstitutional or related to the right of minorities, in this case, gay men, conflicting the power of the legislation.

Moreover, in Statutory Interpretation, there may also be problem of conflicting with legislature. In the Case of Ng Ka Ling10, the Court of Final Appeal claimed that the Basic law should receive a purposive approach, and interpret the Article 24 of the Basic Law, treating Basic law as a living document.11While in the Chong Fung Yuen case12, the court adopted literal approach, giving them the right of abode. 13While in the Preparatory committee for SAR (the provisional legislature council), it is claimed that the son or daughter of parents who are both not permanent citizens in Hong Kong will not have the right of abode when giving an comment on the implementation of article 24. 14The court comes into the conflict with the legislation, giving a contradictory result when using the literal approach.

In common law system, separation of power is important in striking the balance, where the power will be separated into executive, judiciary and legislation. Separation of powers, by Lord Bingham, refers to preventing the centralization of power.15 Under the separation, they are subjected to control of other branches.

Though Constitutional review may cause conflict of the two branches, it is, however, necessary and a way to strike a balance between the two branches and ensure the decentralization of power. The courts in Hong Kong can exercise the power of Constitutional review of legislation action. The court is then performing its duty, within its judiciary power to review the laws, whether they violate basic law or a higher authority, without intervening during court procedures randomly. This can assist in controlling the legislative branch’s power, making it subjected to the judicial branch while no power is abused.

In the above-mentioned case of Leung TC William Roy and the case of Leung and Koo where they successfully appealed and the court declare the section 33 of Telecommunication Ordinance unconstitutional and the government has to replace the law16, constitutional judicial reviews show that it can assist to rectify when there is a mistake. The reviews are used to make a check of the legislation in topics including the death penalty or equal protection of the laws.17

At the meanwhile, the judiciary should not invade the power of the legislation. In the case of Leung and Koo, where the Section 33 of TO is unconstitutional, the court did not immediately declare the law invalid. It gives grace for the government to propose and enact new law to replace the law, leaving some room for the legislation.18

In another the Case of Leung Kwok Hung v President of Legislative council in 2007, about imbalance power of the legislative councilor in proposing bills, where bills which relate to expenditure or changing effect may not be introduced by private member, unless with the consent of the chief executive. The procedures are not rendered inconsistent with the Article 74 of Basic Law. The courts’ jurisdiction should only be exercised in a restrictive manner under the sovereignty of legislative council in Basic Law.19. The rule of procedure of legislative council should be made by its own. The court considered that court should not intervene the legislative process, restricting the judicial power.

When it comes to statutory interpretation, purposive approach is encouraged in common law courts to investigating the aim of the legislation council or parliament’s enactment, this can avoid conflict with the legislation as to interpret underlying meaning instead of the literal one. It shows respect to the legislation.

The examples illustrate the use judiciary power, within the constitution to strike a balance between the judiciary and legislation, and it should not infringe the power of legislation, but serving as a check for the balance of the power.

Question 2

Legislation mechanism in Hong Kong is complicated including proposing, debate and enacted. By article 74 of basic law, for the bills related to the government policy, it needs the chief executive’s consent if the individual councilor would like to introduce. While the consent of chief executive is not needed when it comes to the all bills introduced by the government. 20The difference is showing the unbalancing power of the chief executive and little power of the legislation members in proposing the law.

There is consultation before executive committee sees the draft bill. 21It is usually far from effective as the concern and promotion of the bills are usually not enough, only the minorities and the related concern groups will be consulted. This might be attributed to the lack of promotion and disclosure of the Equal Opportunity Committee. (EOC)

In the legislation of bill, there will be three readings, with speech, debate and amendment. In the case of Racial Discrimination Bill (RDB), there are articles related to Ethnic Minorities children written by experts, including the EOC22 are submitted to the council. Though the government refuses to amend the clauses,23 documents are definitely useful in these situations. It can be illustrated by the Korea case24 where the Human Right Commission lobbied the legislation to pass the sexual orientation discrimination.

By Basic Law Article 75, bills introduced by the government will be passed by simple majority while for bills from individual members needs the simple majority from two separate groups, the geographical constituencies and the functional constituencies. 25While the geographical member is elected by universal suffrage, the functional members are elected by the industries’ representatives. They have great power26 in defeating proposals that are not related to their vested interest. For example, the business leader would afraid the government to impose more social welfare, affecting the low tax rate. 27This again shows the powerful circle and the lack of the democracy in Hong Kong. Such functional members are considered as a stopping force in proposing and debating process.

When the bills are agreed by the members of the legislative council and then passed to the Chief executive to sign (BL48). Chief executive is not obliged to sign the bill, and can return it back to Legco, if the bill is passed again, the chief executive can dissolve the council (BL 50)28 This again shows the power of the chief executive in enactment of law and the lack of democracy since now the chief executive is still not elected by universal suffrage. This violates rule of law, as there is arbitrary power for chief executive.

In Basic Law, article 25 mentioned all people should be equal before the law, including the minorities of different kinds. For basic law, article 39 shows that Hong Kong is incorporated with a list of international human rights protection, including the international covenant on civil and political right (ICCPR) and the international Covenant on Economic Social and Cultural rights (ICESCR) and international labor conventions (ILC). It is said that they should be remain in force and implemented through laws in HKSAR. 29 The ICCPR is incorporated in the domestic Bill of Right Ordinance (BORO), showing the commitment of Hong Kong to international human rights. In this case, ICCPR in article 230 mentioned that state has to respect and to ensure to all individuals within the territory and give them jurisdiction right without discrimination of any kind, including the sex orientation.31 While in article 26 of ICCPR it is said that discrimination is not allowed on any basis including sexual orientation. 32

Moreover, there are more conventions in Hong Kong protects the minorities including sexual orientation minorities, including the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) protects lesbians; and the Convention Against Torture (CAT) which protects sexual minorities in Hong Kong.33 All these conventions and aims should be met the government. The commitment would have influence for proposing the law, fulfilling the convention.

However, most conventions are under United Nation Human Rights (UNHR) and only require Hong Kong to submit reports in every four or five years: ICCPR and ICESCR require a report every 5 years. CEDAW and CAT require one every four years. It is not effective for legislation for the sexual minorities in Hong Kong due the low level of requirement of these conventions and HK is rarely monitored.34 The conventions do not have the real power in Hong Kong in proposing law to protect the minorities.

Even in the case of the Race Discrimination bill, where Margaret Ng, sent the bill to United Nation (UN), the Chairpersons of the respective in UN can only provide advices to the government without imposing any legal obligation on the government. Though international monitoring committees criticize Hong Kong for not creating human rights commission, Hong Kong is still opposing such creation.35

In this case of sexual orientation, the majority of the councilor are still unwilling to bare their responsibility in fulfill the commitment suggested by those international conventions.36 The legislative council voted off the public consultation that is relatively powerless. It shows that the international commitments are not enough to make such councilors to debate.

The EOC is equipped with the power to take action, educate public and review the system.37 However, EOC does not have jurisdiction to enforce the BORO. 38

First, the EOC is largely conciliated-oriented instead of court-oriented. Complainants may not receive legal assistances when the conciliation procedure fails. There are more than half of the complainants seeking for legal assistances are rejected by EOC. In such case, the seriousness of such discrimination problem is not revealing, as they are settled by conciliation anonymously. No information about the case will be released.39 The general public does not know the prohibition of such action or the prevalence of discrimination in Hong Kong. The prevalence is underestimated. In the debate process, this provides councilors excuses arguing about the discrimination being not prevalent.

Meanwhile, the role of EOC is too neutral. Though it only has limited jurisdiction and do not have the power that such a HR commission should entitled, 40it had played a crucial role building the bridge to let more people know that there is a need to impose stricter standard. If it has put more effort during the consultation and debate process, the legislation would then understand the significance of passing such bill, protecting those minority groups in the enactment process.

The EOC commented on sexual orientation discrimination by saying that since no legislation is related to this kind of discrimination, therefore it fell outside the scope of EOC. Though it is not its scope, the EOC can still persuade the government to pass such legislation like Korea.41 In cases like Leung TC William Roy v Secretary for Justice, EOC portrayed as the Amicus curiae42, providing relevant documents to the court. It should provide fact and documents to persuade council in legislation process hence showing the prevalence and what should be included in the bill, effectively enacting the act.

By engaging more in International Human Rights commitment and the improvement of the role of EOC, the mechanism would be improved even under this relatively undemocratic mechanism where power are put into a small group.