Wednesday, 2 December 2015

Adaptation of Laws: When CCP replaces the Crown

Adaptation of Laws: When CCP replaces the Crown
Translated by Gordon C., written by Politic Mood
Original: https://www.facebook.com/politicmood/photos/a.925355774214046.1073741857.349165895166373/927166840699606/


[Chinese only - Vote record]
“We don’t agree with fighting violence with valour. If the government was overthrown, it might give the People’s Liberation Army (PLA) a perfect pretext to take over.” So who’s the one who let the PLA in? Internet Article 23, we still have 8 days to go. 

In the Adaptation of Laws (Military Preference) Bill 2010, the scope of amendment has been far beyond that of adaptation of laws. The Chinese Communist Party (CCP) is able to grant special right to its garrison in Hong Kong, including land purchase, legal exemptions for military vehicles, and the removal of content where the garrison has to be governed by local laws. After the Bill was passed, “armed forces of the Crown” would be replaced by “the Chinese People’s Liberation Army”, the articles concerning “Her Majesty’s Government” would be replaced by “the Central People’s Government”, and “crown immunity” would be replaced by “sovereign immunity”. These adaptations cover a wide scope, including jury system, funeral parlour, rating, registration of persons, transport, telecommunications, libel, dangerous drugs, summary offences, criminal offence, weapons, and pilotage, at a total number of 85 articles. The scope is so wide the adaptations even cover ordinances concerning Star Ferry.

Crown immunity was originally an ancient principle in British Common Law, which signifies the unequal relationship between the ruling class and its subjects. However, throughout the years, laws like Crown Proceedings Act 1947, Human Rights Act 1998 s.4, European Convention on Human Rights, art.6(1) act as a system of checks and balances. Crown Proceedings (Armed Forces) Act 1987 is especially enacted to limit the power of the military forces. The communist government of Hong Kong deliberately kept the exemptions and privileges enjoyed by the British Army and delegated them to the PLA, and crossed out the parts where these powers are limited, enabling the CCP of more power, as CCP places itself at a superior position than the law.

In the Hua Tian Long case in 2010 (The Hua Tian Long (No 3) [2010] 3HKC 557), the plaintiff sued the defendant in the Hong Kong courts for breach of contract and damages, and the crane-barge was supposedly forbidden to leave Hong Kong. The defendant and the owner of the barge, Guangzhou Salvage Bureau was part of the PRC Ministry of Communications, and raised a defense claiming to be entitled to immunity from suit, and therefore could not be sued by virtue of the doctrine of crown immunity. The defense was accepted by The High Court of Hong Kong, none of the parties in this lawsuit queried the legitimacy of such an unfair system, and the Court of Appeal was said to be in no position to carry out any litigation. The judge held that “the immunity which was previously enjoyed by the British Crown in Hong Kong was transferred on Handover to the CPG of the PRC”, and that “crown immunity is absolute and applies not only to functional acts of state but also to commercial acts”. The court in Hong Kong has no right to decide which kind of sovereign immunity is to be practiced in Hong Kong, and has no right to judge in cases concerning sovereign immunity, where the state is the defendant. This entails that state-owned enterprises enjoy special privileges in Hong Kong, and can do harm to the fair competitive environment ad libitum. 

No comments:

Post a Comment