The Common Law System in Chinese Context by Berry Fong-Chung Hau

Author:Berry Fong-Chung Hau [Hau, Berry Fong-Chung]
Language: eng
Format: epub
ISBN: 9781315488233
Barnesnoble:
Publisher: Taylor & Francis
Published: 2019-07-25T00:00:00+00:00

8.2.2.1. Democracy in Hong Kong

A democratically elected legislature is an important check and balance for the Rule of Law and for judicial independence. The American experience during the Watergate crisis in the early 1970s has proven the importance of a directly elected congress to ensure the Rule of Law, and an independent judiciary to uphold the privilege of the congress. At present, all Common Law countries that observe the Rule of Law are democratic.101 This is a rule rather than an exception. In Hong Kong, the problem of the Rule of Law is not a serious issue as the Hong Kong government is accountable to a democratic government in Great Britain. The successful operation of the Joint Declaration on judicial appointment and removal102 relies on the future of democracy in Hong Kong, as well as the document of the Basic Law of Hong Kong.

In its editorial of May 1987, the Hong Kong Law Journal called for “direct elections to the Hong Kong legislature by means of universal adult suffrage.”103 The editor considered that “such elections are an essential element of the Rule of Law, they are consistent with the terms of the Joint Declaration on Hong Kong, and they are an effective means of preserving public order in a free society.” The International Commission of Jurists, in its 1965 Declaration of Bangkok, laid down inter alia that “[t]he Rule of Law can only reach its highest expression and fullest realization under representative government.”104

According to the White Paper on Democratisation released on 10 February 1988, the present Hong Kong government has made it clear that there will only be partial democracy.105 As The Economist noted, “it [the white paper] could have been written in Beijing [Peking].”106 On a more positive side, our results show that a directly elected local legislature has the support of 80 percent of the Chinese members of the legal profession107 although the present Legislative Council reserves one seat to be elected by the legal profession. Even the Hong Kong government’s survey office reported that 75 percent of the Chinese population favor direct elections.108 On 26 July 1989, the Executive and Legislative Councils of Hong Kong endorsed a proposal to increase the proposed number of directly elected legislative seats to twenty by 1991.109

The meaning of “constituted by elections” under the Joint Declaration110 and the Basic Law111 is also subject to different interpretations. Although one can safely assume that the word “elections” mean universal adult suffrage, some groups in Hong Kong have suggested that in preserving the present system direct elections must be ruled out.112

Article 68 of the Basic Law provides that “[t]he ultimate aim is the election of all the members of the Legislative Council by universal suffrage.” Under Annex II of the Basic Law, however, changes in the election procedures, which include implementing a directly elected Legislative Council, are possible only after 2007. As the third term of the Legislative Council expires on 30 June 2007, a direct election is not possible until 2011.113 This will materialize

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