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map courtesy CIA World Factbook; click for enlargement Constitution, Government & Legislation

Hong Kong reverted from British to Chinese sovereignty on July 1, 1997 (the handover). As a Special Administrative Region (SAR) of the People's Republic of China (PRC), Hong Kong enjoys a high degree of autonomy except in defense and foreign affairs and remains a free society with legally protected rights. The Basic Law, approved in 1990 by the PRC's National People's Congress (NPC), provides for fundamental rights and serves as a "mini-constitution." A Chief Executive, selected by a 400-person selection committee that was chosen by a PRC-appointed preparatory committee, exercises executive power. The legislature (known as the Legislative Council) is composed of directly and indirectly elected members.

The power of the legislature is curtailed substantially by voting procedures that require separate majorities among both geographically and functionally elected legislators for bills introduced by individual legislators, and by Basic Law prohibitions against the legislature's initiating legislation affecting public expenditures, political structure, or government operations. In addition the Basic Law stipulates that legislators only may initiate legislation affecting government policy with the prior approval of the Chief Executive. "Government policy" in practice is defined very broadly.

Source: U.S. Department of State

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Courts & Judgments

The Basic Law provides for an independent judiciary and the Government generally respects this provision in practice. The judiciary provides citizens with a fair and efficient judicial process. The judiciary has remained independent since the handover, underpinned by the Basic Law's provision that Hong Kong's common law tradition be maintained. Under the Basic Law, the courts may interpret on their own provisions of the Basic Law that are within the limits of the autonomy of the region. The courts also may interpret other provisions of the Basic Law that touch on central government responsibilities or on the relationship between the central authorities and the SAR, but before making final judgments on these matters, which are unappealable, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress (in the controversial 1999 "right of abode case," the Government, not the court, sought an interpretation from the Standing Committee). When the Standing Committee makes an interpretation of the Basic Law provisions concerned, the courts, in applying those provisions, "shall follow the interpretation of the Standing Committee." Judgments previously rendered are not affected. The National People's Congress vehicle for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The Hong Kong members are nominated by the Chief Executive, the President of the Legislative Council, and the Chief Justice. Human rights and lawyers' organizations long have expressed concern that these exceptions to the Court of Final Appeal's power of final adjudication and this interpretation mechanism could be used to limit the independence of the judiciary or could degrade the courts' authority.

In the controversial 1999 right of abode case the Government, which had lost the case in the Court of Final Appeal, asked the court to clarify its decision. After the clarification, which did not fundamentally alter the court's decision, the Government sought a reinterpretation of the Basic Law provisions at issue in the case from the NPC Standing Committee (NPCSC). The NPCSC's reinterpretation meant that the ruling by the Court of Final Appeal, which remained in force for the abode claimants involved in the case, would not apply to those with similar abode claims. The reinterpretation also raised questions about the potential future independence and ultimate authority of Hong Kong's judiciary. Since the controversy, the Government has expressed its intention to make recourse to the NPC interpretation mechanism a rare and exceptional act. In several right of abode cases before the Court of Final Appeal during the year, the Government argued that the Court should seek an NPCSC interpretation of relevant Basic Law provisions, but did not seek one itself when the Court declined to do so, even in the one case that it lost.

The Court of Final Appeal is Hong Kong's supreme judicial body. An independent commission nominates judges; the Chief Executive is required to appoint those nominated, subject to endorsement by the legislature. Nomination procedures ensure that commission members nominated by the private bar have a virtual veto on the nominations. Legal experts complained that the commission's selection process is opaque. In November 2000, legislators requested that the process be made transparent. The Government responded that privacy concerns prevented opening the process to the public. The Basic Law provides that, with the exception of the Chief Justice and the Chief Judge of the High Court, who are prohibited from residing outside of Hong Kong, foreigners may serve on Hong Kong's courts. Approximately 40 percent of Hong Kong's judges are expatriates from other common law jurisdictions. Judges have security of tenure until retirement age (either 60 or 65, depending on date of appointment).

Beneath the Court of Final Appeal is the High Court, composed of the Court of Appeal and the Court of First Instance. Lower judicial bodies include the District Court (which has limited jurisdiction in civil and criminal matters), the magistrates courts (which exercise jurisdiction over a wide range of criminal offenses), the Coroner's Court, the Juvenile Court, the Lands Tribunal, the Labor Tribunal, the Small Claims Tribunal, and the Obscene Articles Tribunal.

According to the Basic Law, English may be used as an official language by the executive, legislative, and judicial branches. For historical reasons and because of the courts' reliance on common law precedents, almost all civil cases and most criminal cases are heard in English. In recent years; however, the Government has developed a bilingual legal system. It has increased the number of officers in the Legal Aid Department proficient in Chinese and extended the use of bilingual prosecution documents and indictments. All laws are bilingual, with the English and Chinese texts being equally authentic. All courts and tribunals may operate in either Chinese or English. Judges, witnesses, the parties themselves, and legal representatives each decide which language to use at any point in the proceedings.

Source: U.S. Department of State

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Human Rights

The Chinese Government generally respected the human rights of residents of Hong Kong in 2001, and the law and judiciary generally provide effective means of dealing with individual instances of abuse. Human rights problems that existed both before and after the handover include: limitations on residents' ability to change their government and limitations on the power of the legislature to affect government policies; occasional police use of excessive force; some degree of media self-censorship; violence and discrimination against women; discrimination against the disabled and ethnic minorities; intimidation of foreign domestic workers; and trafficking in persons for the purposes of forced labor and prostitution. Despite the ban on the Falun Gong in mainland China, the Falun Gong remained legally registered and generally free to continue its activities in Hong Kong.

Human rights activists remain concerned that the legal system may favor those closely aligned with China or with powerful local institutions. In particular, concerns were raised by two past Justice Department decisions, in which the Government decided not to prosecute the New China News Agency for alleged violations of the Privacy Ordinance (see Section 1.f.) or to prosecute a prominent newspaper editor with close ties to Beijing who was accused of fraud.

Source: U.S. Department of State

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Legal Profession

Lawyers in Hong Kong are denominated barristers or solicitors and are still organized according to traditional English practice.

Source: Kime's Directory

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