Lam Wing Shan, Kayla (14207605) Pang So Yan, Jennifer (14207591) So Tsz Ching, Natalie (14207605) 1 Agenda Question 1a Addtional questions Question 1b
2
The constitution of a state or territory can be defined as one which establishes (constitutes) the basic institutions of government, distributes governmental authority amongst them, defines the relationship between them (Wesley-Smith, 1998, p. 20)
Given the definition, explain in what ways the Basic Law is the constitution of the Hong Kong Special Administration Region (HKSAR).
3 What is Constitution? Documents: comprises the written constitution (the most basic rules are all together in one place)
Particular legislation, or decisions by the courts, contribute to the complex of precepts which fall into the category of constitutional 4 4 Parts A. Basic institutions of government
B. Distributes governmental authority amongst them
C. Defines the relationship between them
5 A. Basic institutions of Government
Article 31 of the Constitution of the Peoples Republic of China establish special administrative regions That systems to be instituted shall be prescribed by law enacted by the National Peoples Congress
Legislation
Basic Law BL11 6 B. Distribute governmental authority amongst them 1. The Chief Executive BL43 - Head of HKSAR and represent the region BL48 - State the powers and functions that the Chief Executive shall be exercised
7 B. Distribute governmental authority amongst them 2. The Executive Council BL59 - Executive authorities of the Region BL62 - State the powers and functions that the Government shall be exercised
8 B. Distribute governmental authority amongst them 3. The Legislative Council BL 66 - Legislature of the Region BL 73 - State the powers and functions that the Legislative Council shall be exercised 9 C. Define the relationship between them Chief Executive Executive Council
BL56 Executive Council Chief Executive 10 C. Define the relationship between them Chief Executive Executive Council
Making important policy decisions
Introducing bills to Legislative Council
Making subordinate legislation
Dissolving the Legislative Council
BL56 Consulting the Executive Council 11 C. Define the relationship between them Chief Executive Legislative Council
BL49 Bill Chief Executive 12 C. Define the relationship between them Chief Executive Legislative Council
BL76 Bill LAW 13 C. Define the relationship between them Chief Executive Legislative Council
BL49 Within 3 months, Chief Executive 14 C. Define the relationship between them Chief Executive Legislative Council
BL49 Bill: PASS Chief Executive Within 1 month, 15 C. Define the relationship between them
BL50 Chief Executive Executive Council Legislative Council 16 C. Define the relationship between them Chief Executive Legislative Council
BL49 Bill: PASS Chief Executive Within 1 month, 17 C. Define the relationship between them Chief Executive Legislative Council
BL50 18 C. Define the relationship between them Chief Executive Legislative Council
BL50 19 C. Define the relationship between them Chief Executive Legislative Council
BL50 Dissolve 20 C. Define the relationship between them Chief Executive Executive Council
BL50 Consultation 21 The basic policies of the Peoples Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration. In accordance with the Constitution of the Peoples Republic of China, the National Peoples Congress hereby enacts the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China, prescribing the systems to be practised in the Hong Kong Special Administrative Region, in order to ensure the implementation of the basic policies of the Peoples Republic of China regarding Hong Kong. 22 Question Who is the Chief Executive of HKSAR? Who is the convenor of the Executive Council? Who is the president of the Legislative Council? 23 Additional Question 1 Who is the Chief Executive of HKSAR?
CY Leung 24 Additional Question 2 Who is the convenor of the Executive Council? Lam Woon-kwong 25 Additional Question 3 Who is the president of the Legislative Council?
Jasper Tsang (Tsang Yok-sing) 26 The doctrine of precedent can maintain the consistency and the flexibility of the case law system at the same time. Discuss. 27 What is Case Law? Common Law System Legislation Case Law 28 What is case law? Case law established based on previous judicial decisions. (judge-made law)
Reasons for the decision 1. finding facts distinguished in the future 2. statements of law principle of law to apply in order to solve problems and reach the decision 3. statements of law made by the way distinguished from the ratio of a case, introducing development and persuasive precedent 4. the decision outcome of the court hearing 29 What is the doctrine of precedent? The doctrine of precedent:
like cases should be treated alike, and dissimilar cases should be treated differently 30 Case Study - Stare decisis Present case: Grant v. Australian Knitting Mills in 1936 The woolen underwear contained chemicals that caused dermatitis
Previous cases: Donoghue v. Stevenson in 1932 If the beer was contaminated during the process with a dead snail, the manufacturer of ginger beer would be liable to the consumers.
It was held that: The manufacturer was LIABLE for the incident Doctrine of Precedent Follow the principle established in the Donoghue v. Stevenson case 31 Consistency
previously heard any points of law
decided by a higher ranking court require to be followed
32 Case Study Wong Lok Keung v discovery Bay Transport Services Ltd (2005) A ferry worker Pushing a trolley along a narrow passage towards the ferrys gangway Tripped over a raised metal plate 33 Discovery Bay Transport Services Ltd was not liable to this incident. This case was similar to the previous case Pickford v Control Data Ltd in 1984. 34 Previous case: Pickford v Control data Ltd(1984) A worker tripped over a tile rising inch while pushing a trolley in a large workshop with 5500 tiles
35 36
*Metal plate occupied most of the part of the gangway 1 inch thick The chance of tripping was not remote W could fall overboard or be crushed by a mooring ferry The fact in Pickfords case not comparable with Ws case DBTS Ltd : LIABLE 37 The operation of the doctrine of binding precedent is limited.
The ratio is the only part of the decision which is a binding precedent. 38 possibility of decision overruled or distinguished
Overruled: different decisions between Court of First Instance (CFI) and Court of Appeal (CA) overruled CFI decision Legislature creates a new law contradict the decision overdue the decision Flexibility 39 Distinguished
if the decision is significantly different need to be considered if not, may not warrant distinguish 40 Reference 1. Vanessa, S. (2010). An Introduction to Hong Kong Business Law. Singapore: Pearson Education South Asia.
2. Peter, W. S. (1998). An Introduction to the Hong Kong Legal System. Hong Kong : Oxford University Press.
3. The National Peoples Congress of the Peoples Republic of China. (March 14, 2004)). Constitution of the Peoples Republic of China. Retrieved Sep 23, 2014, from http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372963.htm
4. The Basic Law. (n.d.). The basic law of the Hong Kong Special Administrative Region of the Peoples Republic of China. Retrieved Sep 23, 2014, from http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf.