Common law reinforced it and legitimised British overlordship eg presumption of

Common law reinforced it and legitimised british

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Common law reinforced it and legitimised British overlordship, e.g. presumption of non-retrospective. SBJD 1982 - Beijing’s intention to resume sovereignty over HK Purpose: To pacify HK people (enjoy high degree of autonomy except for foreign affairs and defence) Basic Law (4/4/1990) Art 5-socialist system and policies not practiced ->remain unchanged for 50 years (2 systems) Art 22(1) - No department of the CPG may interfere with HKSAR affairs (AUTONOMY) Uphold the spirit of Magna Carta: Basic rights Equality before law (25) Freedom of the person (28(1)) No punishment except for breach of law (28(2)) Right to the writ of Habeas Corpus (28(2)) Common law constitutional principles Responsible gov’t - accountable to LegCo (64) Judicial independence (85) Justice delayed is justice denied - right to fair trial without delay + presumption of innocence (87(2)) Trial by jury (86)
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Judges must be learnt in the common law (89(2)) Continuity of common law principles Conservation of pre-existing laws (8) Conservation of pre-existing legal principles (19(2)) Conservation of pre-existing courts except CFA (81(2)) Unalterable basic structure: No amendment to this Law shall contravene the established basic policies (as provided in SBJD) of the PRC regarding HK (159(3)) Issues with BL: - No guarantee for NPCSC and State Council’s self restraint and moderation when using their power - HK community relegated to a marginal role in the drafting, interpretation and amendment of BL (top to bottom) Chief Justice Ma: The theme of continuity runs thru the BL Anthony Mason: Essential unity between BL and the common law; cannot treat them separately Orderly Succession of Sovereigns Effect: Original legal system preserved Sino-British conflicts: - Repealed HK Bills of Rights Ordinance ss.2(3), 3 that mandates all pre-existing legislation - Enfranchise 2.7 mil voters in 1995 LegCo general election Guarantee peaceful handover in 1997 and legal system remained intact. Thanks to the HK Reunification Ordinance (1/7/1997): - Assist the interpretation of laws previously in force - Confirm Bills passed by Provisional LegCo (unelected) - Continue laws, legal proceedings and the administration of justice > 99% legislation remained in force Lawyers and judges practiced in same manner Common law approach retained Maintained court system except CFA IGCO schedule 8:
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Confirmed transfer of the rights and powers enjoyed by the previous Sovereign But Adaptation of Laws Ordinance transferred: traditional exemptions of the Crown → ‘State’ rights and privileges of the British Armed Forces → HK Garrison of the People’s Liberation Army
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Chapter 4 - Rule of law Origins: Magna Carta 1215 ‘unspoken but fundamental bargain’ - MC containing core features of ROL now Limit state power: King’s proclamation is not source of law Lord Woolf (2005) Case of Proclamations (1611), Coke LCJ Because not by law and reason Both visible institution and invisible deal Visible: Manifests itself in independent courts, predictable laws, enforceable legal
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