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September 08, 2005
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The long arm of the law
Senior Chinese Government officials decided it would be a good idea to collate the thoughts and intentions of the legislative intent of the Basic Law, Hong Kong's constitution, in a compendium. Naturally many suspected this was a stealthy way for Beijing to further stamp its interpretations of the Basic Law. But nothing could be further from the truth, says another official. It is merely a historical document, a matter of academic research. It will not be used as a guideline for interpretations nor will it affect judicial decisions. I wonder if they will also seek out the views, thoughts and opinions of the Brits involved in drafting the Basic Law?
By complete co-incidence the SCMP reports a renewed push for Hong Kong to conclude an agreement with the mainland on enforcing civil court judgements in each jurisdiction. Why would Hong Kong's legal fraternity be worried about such a reasonable proposal?
Lawyers and business leaders in Hong Kong last night welcomed the prospect of such a deal, but said stumbling blocks remained. Chief among their worries were the quality of mainland justice and whether mainland authorities could enforce Hong Kong court judgments.The rest of the article has similarly hedged quotes. Interestingly Taiwan and the mainland have had a mutal recognition agreement for seven years. Essentially Hong Kong's lawyers are saying they don't have enough faith in China's legal system.
Remember, the Basic Law compendium will not be a legal document. We have Beijing's word.
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“I wonder if they will also seek out the views, thoughts and opinions of the Brits involved in drafting the Basic Law?”
The editors would argue that the Basic Law was passed by the National People’s Congress and it has nothing to do with the Englishmen!posted by: Letters from China on 09.08.05 at 04:48 PM [permalink]
Perhaps, but if the true intent is to capture the thoughts of the drafters of the Basic Law, they need to include the Brits as well!posted by: Simon on 09.08.05 at 05:11 PM [permalink]
Quite. Then should they consult Mr Martin Lee SC as well?
In fact the so-called true intent of Parliament, whether in the UK or China, is always a legal fiction. Do the MPs in Westminster know why do they support a bill (besides under duress of the party whips)? Besides, a common law court does not care what the drafters thought – the duty of the court is to ascertain the intent of the legislature, in legal theory at least.posted by: Letters from China on 09.08.05 at 05:23 PM [permalink]
Beijing have already demonstrated they don't believe that words are the be all and end all of laws...each "interpretation" of the Basic Law is proof of that.
As I understand legal theory, there is a big debate between "originalists" who believe the words on the page are what matter most and the camp who see documents as "living things" that depend upon the intentions of the framers most in determining how to apply laws to modern problems. That's the US Supreme Court in a nutshell.posted by: Simon on 09.08.05 at 05:36 PM [permalink]
Right, let's consult the advisors of the Qing government as well since they helped draft the original Treaty of Nanking!
Geez, I've been away from Hong Kong for only two weeks...posted by: spacehunt on 09.09.05 at 09:59 AM [permalink]