Saturday, March 3, 2018

Albert Chen and PY Lo on Hong Kong's Judiciary under 'One Country, Two Systems' (new book chapter)

"Hong Kong's judiciary under 'one country, two systems' " 
Albert H. Y. Chen and P. Y. Lo (PhD 2012)
in Hoong Phun Lee and Marilyn Pittard (eds), Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (Cambridge University Press, Dec 2017),  pp. 131-168
Introduction: Hong Kong, formerly a British colony and since 1997 a Special Administrative Region (HKSAR) of the People's Republic of China (PRC) under the constitutional formula of 'One Country, Two Systems', has a judicial system that is much more highly evaluated, trusted and respected internationally and locally than its counterpart in mainland China.  The colonial judicial system in Hong Kong, though modelled on the common law system in England, did not always fully guarantee the litigant's right to a fair hearing before an independent and impartial tribunal, but at least the normative ideals of the rule of law and judicial independence were implanted on Hong Kong soil during the colonial era.  Such ideals have remained alive and well, and more cherished and vigorously defended than ever before, since Hong Kong was re-unified with China in 1997.   Under the Hong Kong Basic Law - the HKSAR's constitutional instrument that was enacted by the PRC's National People's Congress in 1990 and came into effect in 1997 - Hong Kong enjoys a high degree of autonomy, and its pre-existing legal and judicial systems have largely remained intact, save that a new Court of Final Appeal was established, which exercises the power of final adjudication in Hong Kong cases - a power formerly exercised by the Judicial Committee of the Privy Council in London.
    This chapter provides an overview of the Hong Kong Judiciary, particularly those aspects of the judicial system that are relevant to the independence, impartiality and integrity of the courts and their judges.   The chapter includes the following sections: (7.2) the structure of the judicial system; (7.3) judicial features of 'One Country, Two Systems'; (7.4) appointment and conditions of service of judges; (7.4.11) rules of bias and recusal; (7.4.12) contempt of court by 'scandalising the court'; (7.4.13) judges and free speech; (7.4.14) judges and non-judicial functions.  These sections will be followed by a concluding section.

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