Abstract
Decisions on the structure of the state and the allocations of powers are seldom made in accordance with principle or doctrine (whatever the invocations of Locke, Montesquieu, Marx, the Koran, or the Gita). Without wanting to discount the influence of legal and constitutional traditions, key decisions are made primarily in the interests of the decision makers, whether directly or through proxies. This applies as much to procedural issues as to matters of substance. In this chapter, I argue that, despite the explanation of conflict over the interpretation of the Basic Law of the Hong Kong Special Administrative Region (HKSAR) in terms of the differing traditions of the common law and the civil law, Article 158 (and its uses) is more realistically analyzed in terms of strategies of control.
I thank Sophia Woodman and Jill Cottrell for their assistance in the preparation of this chapter and the University of Hong Kong for the Distinguished Researcher Award which has facilitated my research on comparative constitutions.
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Notes
Alexander Hamilton, “Federalist Paper No. 78.” The references are to its reprint in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: New American Library, 1961).
XI, January 31, 1788, reprinted in Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: Penguin Putnam, 1986; repr. 2003), 293–98.
Michael P. Fitzsimmons, The Remaking of France: The National Assembly and the Constitution of 1791 (Cambridge: Cambridge University Press, 1994).
Eric Thompson, Popular Sovereignty and the French Constituent Assembly 1789–91 (Manchester: Manchester University Press, 1952), 86.
Jeremy Rabkin, “Revolutionary Visions in Legal Imagery: Constitutional Contrasts between France and America,” in The Legacy of the French Revolution, ed. Ralph E. Hancock and Gary L. Lambert (Lanham, MD: Rowman and Littlefield, 1996), 224–25.
Jean Egret, “Was the ‘Aristocratic Revolt’ Aristocratic?” reprinted in The French Revolution: Conflicting Interpretations, ed. Frank A. Kafker and James M. Laux, 4th ed. (Malabar, FL: Robert E. Krieger, 1989). Both quotations appear on page 39.
See Timothy Tackett, Becoming a Revolutionary: The Deputies of the French National Assembly and the Emergence of a Revolutionary Culture (1789–90) (Princeton, NJ: Princeton University, 1994), for a wonderfully vivid account of the role of crowds and mobs in the operations of the National Assembly.
Carl Baudenbacher, “Some Remarks on the Method of Civil Law,” Texas International Law Journal 34 (1999): 345–46, footnotes omitted. On page 337 he writes, “The codes of Austria, France, Italy, and Spain even contain rules providing guidance to judges on how to proceed in the case of a gap. The Swiss Code expressly grants judges the authority to develop judge-made law in certain circumstances.”
Rene David, Sources of the Law, Vol. 2 of The Legal System of the World and Their Comparison and Unification, World Encyclopedia of Comparative Law (The Hague: Martinus Nijhoff, 1984), ch. 3.
See, for example, Schwartz, Herman, Struggle for Constitutional Justice in Post Conflict Europe (Chicago: University of Chicago Press, 2000).
Otto Bihari, Socialist Representative Institutions (Budapest: Akademiai Kiado, 1970), 175. He notes that both Yugoslavia and Czechoslovakia had initiated constitutional courts but attributes this to their federal character. Woodman makes a similar point about the fusion of power in Chapter 11 of this volume. Eyula Eorsi, one of the most distinguished legal scholars of communist legal systems, an outstanding comparativist and rector of Budapest University used to tell me that the techniques of law are determined by tradition, but its values are determined by ideology. Socialist law, arising first in continental Europe, adopted the technique of civil law to achieve the values and goals of communism.
The account here relies principally on Martin Lee, “A Tale of Two Articles,” in The Basic Law and Hong Kong’s Future, ed. Peter Wesley-Smith and Albert Chen (Butterworths: Hong Kong, 1998).
The committee has also to be consulted when the NPCSC declares a Hong Kong law invalid, a Mainland law (except an emergency law) is extended to Hong Kong, and an amendment to the Basic Law is introduced. Its precise consultative role has not been defined. It is possible that at first a larger role for it was intended, as it was said to be based on the Nordic autonomous model; see Yash Ghai, “Resolution of Disputes between the Central and Regional Governments: Models in Autonomous Regions” Journal of Chinese and Comparative Law 5 (2001): 1–20. Albert Chen, an original member of the committee, thinks that it was “intended to be a mediating and arbitral organ for resolving differences of opinion between the central authority and the SAR.” He also proposed vesting the Basic Law Committee with the authority to mediate in conflicts between the State Council and SAR after the SAR has made a complaint to the NPCSC; see Albert Chen, “The Relationship between the Central Government and the SAR,” in The Basic Law and Hong Kong’s Future, 138–39.
This paragraph is based on a lengthy discussion in Yash Ghai, Hong Kong’s New Constitutional Order: The resumption of Chinese Sovereignty and the Basic Law, 2nd ed. (Hong Kong: Hong Kong University Press, 1999), 167–72.
For a detailed commentary on the decision, see the first edition of Yash Ghai, Hong Kong’s New Constitutional Order (Hong Kong: Hong Kong University Press, 1997), 492–98.
A detailed account of the events leading to the interpretation is to be found in J. M. M. Chan, H. L. Fu, and Yash Ghai, eds., Hong Kong’s Constitutional Debate: Conflict Over Interpretation (Hong Kong: Hong Kong University Press, 2000).
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© 2007 Hualing Fu, Lison Harris, and Simon N. M. Young, eds.
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Ghai, Y. (2007). The Political Economy of Interpretation. In: Fu, H., Harris, L., Young, S.N.M. (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230610361_7
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DOI: https://doi.org/10.1057/9780230610361_7
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