In this master thesis, we will present the different legal responses that have been made in reaction to the Occupy movement in the form of lawsuits, Basic Law Interpretation, and new legislation. These reactions to the Occupy movement are an opportunity for us to measure the degree of autonomy that the PRC is ready to give to the HKSAR and its level of involvement in certain issues. Similarly, such a sensitive matter concerning Chinese sovereignty as well as the politics of democracy make it a very lively and up-to-date debate.
First, we will present Hong Kong's history before and after the handover. Second, we will lay out its autonomous status as a Special Administrative Region of the PCR, the foundation principle of the “One country, two systems" and the differences between Mainland and Hong Kong legal systems. Third, the Occupy movement, its background, and purpose will be explained. Fourth, the legal reactions to the Occupy movement will be listed and analyzed and finally, they will be put into legal perspective in order to find out if these reactions actually represent a threat to the HKSAR’s autonomy.
The objective of this paper is to determinate if the legal interference of the PRC has an effective influence on the autonomy of the HKSAR and if so, how this influence is visible through legal reactions over the Occupy movement.
Table of Contents
Introduction
I. A Brief History of Hong Kong
1. Hong Kong as a British colony
2. Hong Kong after 1997
II. Hong Kong Autonomy as HKSAR
1. Different definitions of autonomy
2. The Sino-British Joint Declaration and the Basic Law
3. “One Country, Two Systems”
a) The Common Law legal system
b) China’s socialist civil law system
c) A complex fusion
III. The Occupy Central Movement
1. Origins and social context
2. Methods and Objectives
3. Resolution and results
IV. The Legal Reactions to the Occupy Movement
1. The case for unlawful assembly
a) Context and charges
b) Trial and sentence
c) Legal consequences of the case
2. The oath-taking case
a) Context and charges
b) Trial and sentence
c) The NPCSC’s Interpretation and its legal consequences
3. New laws and legislation projects
a) Article 23
b) Modification of the Legislative Council’s House Ruling
c) National anthem and Joint checkpoint
V. The Impact on Hong Kong’s Autonomy
1. The Rule of Law, “One Country, Two Systems” and the independence of the judiciary
a) The impact on the Rule of Law
b) “One Country, Two Systems” and the case for oath-taking
c) The impact on Hong Kong’s independent judiciary and legislative
2. The legal reactions to the Occupy Central movement and their impact on Hong Kong’s autonomy
Objectives and Thematic Focus
This work examines the extent to which legal reactions by the PRC and HKSAR authorities in response to the Occupy Central movement have impacted Hong Kong's autonomy. It explores how these legal interventions challenge the established "One Country, Two Systems" framework and the independence of the judiciary.
- Historical evolution of Hong Kong's autonomous status.
- Analysis of the "One Country, Two Systems" principle in practice.
- Impact of legal actions, including criminal trials and Basic Law interpretations, on the Rule of Law.
- The erosion of judicial and legislative independence in the HKSAR.
Excerpt from the Book
A complex fusion
The fundamental differences between these two legal systems are critical when observing the case of Hong Kong’s autonomy. After the handover, Hong Kong is facing a crucial contradiction where it has been granted judicial autonomy while resting under the sovereignty of the PRC, which legally obliges it to abide by the NPC’s decisions. This ambiguity enshrined in the Basic Law has been well captured by legal expert Albert Chen as he explains:
“And the paradox of the Basic Law lies in its dual nature. It is at once a national law and the constitutional instrument of the Hong Kong Special Administrative Region (HKSAR). It was enacted by the National People’s Congress in accordance with Chinese constitutional principles and legislative procedures, and yet it serves as the foundation of the common law in the post-1997 legal system of Hong Kong and is enforced by the courts of Hong Kong’s common law based legal system.”
There lies the complexity of the application of the “One Country, Two Systems” principle. Under the Joint Declaration, constitutionalism in the form of the Common Law should be maintained in the HKSAR, as well as an independent judiciary. However, as a sovereign, China and its socialist legal system hold the right to interpret the Basic Law not only when requested, but also when it sees fit (as stated in Article 158). This privilege understood by the Chinese legal system is non-negotiable and grants the NPCSC with utter final adjudication over Hong Kong. Moreover, it might be the only instrument that ties both legal systems to one another, hence their ideological gap.
Summary of Chapters
I. A Brief History of Hong Kong: Provides an overview of Hong Kong's transition from a British colonial territory to a Special Administrative Region under the PRC.
II. Hong Kong Autonomy as HKSAR: Examines the theoretical and legal definitions of autonomy, including the Basic Law and the "One Country, Two Systems" principle.
III. The Occupy Central Movement: Details the origins, objectives, and social context of the 2014 civil disobedience protests in Hong Kong.
IV. The Legal Reactions to the Occupy Movement: Analyzes specific legal responses including the unlawful assembly trials, the oath-taking controversies, and subsequent legislative projects.
V. The Impact on Hong Kong’s Autonomy: Evaluates the cumulative effect of these legal actions on the Rule of Law and the independence of the HKSAR's judiciary and legislature.
Keywords
Hong Kong, HKSAR, Autonomy, Basic Law, Occupy Central, One Country Two Systems, Rule of Law, Judiciary, Legislation, Civil Disobedience, Sovereignty, PRC, NPCSC, Political Reform, Human Rights
Frequently Asked Questions
What is the primary focus of this dissertation?
This work explores the legal consequences of the Occupy Central movement and assesses how these actions have influenced the autonomy of Hong Kong under the "One Country, Two Systems" framework.
What are the central themes discussed in the book?
The book covers the legal and political relationship between the HKSAR and the PRC, the role of the judiciary, the impact of NPCSC interpretations, and the status of the Rule of Law in Hong Kong.
What is the core research question?
The research seeks to determine whether legal interference by the PRC has an effective influence on the autonomy of the HKSAR and how this influence manifests through legal reactions to political protests.
What scientific methods are applied?
The author uses a qualitative legal analysis, comparing theoretical concepts of autonomy and the Rule of Law with specific judicial decisions, trial outcomes, and legislative changes following the 2014 protests.
What is covered in the main section of the book?
The main sections analyze the "unlawful assembly" trials, the "oath-taking" case involving legislators, and ongoing legislative projects like the implementation of Article 23 and the national anthem law.
Which keywords best describe the paper's contents?
Key terms include Hong Kong, HKSAR, Autonomy, Basic Law, Rule of Law, One Country Two Systems, and Judicial Independence.
How does the author define the "One Country, Two Systems" framework?
The author views it as a fragile political compromise that allows for the coexistence of two divergent legal and governance systems, which is currently under stress due to the PRC's assertions of sovereignty.
What is the significance of the NPCSC's power of interpretation?
The NPCSC’s power of interpretation is highlighted as a critical tool that allows the Central Government to override local judicial decisions, which the author argues poses a threat to the independence of Hong Kong’s courts.
What is the author's conclusion regarding the future of Hong Kong's autonomy?
The author concludes that the ongoing legal interference and the prioritization of "One Country" over "Two Systems" are significantly weakening Hong Kong's autonomy and its unique legal system.
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- Maude N'Diaye (Autor:in), 2018, Legal Reactions to the Occupy Movement and their Impact on Hong Kong's Autonomy, München, GRIN Verlag, https://www.grin.com/document/511859
