By Johannes M M Chan, H L Fu, Yash Ghai
This ebook explores felony and constitutional concerns in Hong Kong’s courting with mainland China via an research of the litigation at the correct of domicile of the kids of Hong Kong citizens who're born and reside within the mainland.
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Additional info for Hong Kong’s Constitutional Debate: Conflict Over Interpretation
Sample text
However, the courts began to resile from the extreme position taken in Ma. The opportunity for this arose in the case on the right of abode. The issue this time was less the direct application of Chinese law, but the compatibility with the Basic Law of a Hong Kong law (the Immigration (Amendment) (No. 3) Ordinance (1997) which purported to give effect to some of its consequences). The applicants argued that the restriction imposed by the Ordinance, that an exit permit from the mainland authorities was necessary for the entry of those mainland residents who qualified for the right of abode in Hong Kong under article 24(2)(3) breached the Basic Law.
12 Whether Hong Kong courts can review mainland laws applying in Hong Kong has been more controversial. The issue arose in Ma because the justification for the legality of the Provisional Legislative Council were decisions of the NPC and bodies operating under its authority. The solicitor-general challenged the authority of regional courts to examine acts of the national government. His argument was based on the specific provisions of the Basic Law as well as general principles under which regional courts purport to operate.
Second, there was no evidence that the interpretation represented the intention of Basic Law drafters or the NPC. In the CA, Chan CJHC (758-9H) provided a detailed rationale. He rejected the argument that the agreement, representing a revision of the Joint Declaration, was binding. He held first that the interpretation is not a matter of revising treaties or of reading into them what they do not expressly or by necessary implication contain, or of applying a result contrary to the letter or spirit of the treaty's text.