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    Public Law 2018

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    Sandra Chow

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    © All Rights Reserved
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    CITY UNIVERSITY OF HONG KONG Course code and title: | LW3610 Public Law of the PRC. Session + Semester B, 2017/18 Time Allowed ‘Three hours This paper has four pages (including this page). Instructions to candidates: This is ar open book examination; 2. You may bring into examination hall any reference materials except City University library materials; 3. You are required to answer: i. any THREE out of the four questions in Part I: ii, any ONE question out of the two questions in Part I; and 4, All questions carry equal marks, PARTI Question One (25 marks) Article 104 of the Basic Law ofthe HKSAR provides: “When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary inthe Hong Kong Special Administrative Region ‘must, in acconlance with law, swear to uphold the Basie Law of the Hong Kong Special Administrative Region ofthe People's Republic of China and swear allegiance to the Hong Keng Special Administrative Region of the People's Republic of China” ‘The NPCSC issued an interpretation of Article 104 of the Basic Law in 2016, of which paragraph 3 provides “The taking ofthe oath stipulated by Article 104 ofthe Basic Law .. is a legal pledge ‘made by the public officers specified inthe Article to the People’s Republic of China and its Hong Kong Special Administrative Region, and is legally binding. The oath taker must sincerely believe in and strictly abide by the relevant osth presribed by law. An oath taker who makes a false oath, or, who, aftr taking the oath engages in conduct in brezeh of th oath, shall bear egal responsibility in accordance with law” ‘The Hong Kong Government is reviewing whether or not there is a necessity to amend the relevant sections inthe Oaths and Declarations Ordinance (Cap. 11) to make it consistent ‘with paragraph 3 of the NPCSC's interpretation of Article 104 of the Basic Law. It comes to seek your advice onthe following issues: ‘What is the mechanism under Chinese lew to decide the consistency between a piece of lepslation of the NPCSC and a piece of legislation of the NPC? (10 marks) Does there exist an inconsistency between the NPCSC interpretation of Article 10s and Aricle 104 ofthe Basic Law? and why? (5 matks) If the Hong Kong Government is of the view that there is an inconsistency and ‘wants to sesk an interpretation from the NPCSC on this inconsistency, advise it of the appropiate procedures under Chinese law. (10 marks) Question Two (25 marks) The NPC has recently adoped the $* amendment othe 1982 Constitution of the PRC, of hich two ae very consoversil, One is hata sentence is added to pargraph 2 of Arte 1 ofthe Constitution as follows: “The leadership ofthe Communist Party of Chia isthe most fundamental characte of socialism with Chinese characterises". The oter is thatthe pase “and they shall sere no more than two coasecuve terns” will be deleted from ragraph 3 of Article 79 ofthe 1982 Constitution, which, before amendment, provided that “The tem of office ofthe President and Vice-President ofthe People’s Reubie of China is the same as that ofthe National People's Congress, and they shall serve no more than Wo consecutive terms" Critically evaluate the constitutional significance ofthese two amendments. ‘Question Three (25 marks) ‘The People's Congress System i the fundamental political system in China. Amtile 2 ofthe 1982 Constitution provides: “All power in the People’s Republic of China belongs to the people. The organs though which the people exercise state power are the National People's Congress andthe local people's congresses at different levels..." 1. Please identify two areas in which the people's congress system needs improvement and give specific suggestions and reasons for improvement; (15 marks) 2. One of the essential functions of the people's congresses at various levels is about personnel appointment. Critically analyze the constitutional arrangement on the ‘appointment authority, (10 marks) Question Four 25 marks) Under both the 1982 Constitution and Legislation Lav, legislative authority has been granted to both the organ of state power (people's congresses) and the executive organs (people's governments) at munixpal level and above 1, Diseuss the rationale behind such constitutional arrangement as well a8 the pros and ‘cons of such anangement; (10 matks) 2, Ione is of the view that apiece of local legislation enacted by Guangzhou Municipal People’s Congres i inconsistent withthe 1982 Constitution, advise him of available legal procedures for him to challenge the eonstitutonality of that local legisaton. (15 marks) PARTI Question Five 25 marks) ‘ABC Company signeé a land lease agreement in 2015 with the Land Administration Bureau ‘of X County in Shenzten for apiece of land located in dawntowm centre in the County as & carpark for 3 years. Ir July 2017, the Land Administration Bureau submited a request to the People’s Government of X County secking its approval to take resumption ofthat piece of land. The People’s Government of X County sent a written reply to its Land Administrative ‘Bureau approving its request in January 2018. ABC Company fist equired this information fiom its contact within the Land Administration Bureau. I obtained the written reply through the Regulations on Access to Government Information in Februsty 2018, It decided to take legal action against the Land Administration Buren. 1. Advise ABC Company what legal actions it can take against the Land Administration ‘Bureau, and why? (15 marks) 2. In March 2018, the Land Administration Bureau officially informed ABC Company ofthe Reply ad its intention to implement the Reply. Would your advice be different? and why’ (10 mats) ‘Question Six 25 marks) ‘Mr. Wang is a residere of Guangzhou City, Guangdong Province. His father has given him RMB 1 million to do his own business. He noticed thet thete is @ Chinese Tea House in a park in Tianhe District, which i rarely used. He went to talk tothe management of that Park and signed a lease wih the management in October 2017 for 2 years to convert the Tea House into an internt bar. After 4 months’ decoration and spending RMB 800,000 on purchasing computers and equipment, the internet bar opened on | February 2018, The Administration fo: Industry and Commerce of Tianhe District received some complaints fom the publi about the intemet ber. fle investigation, it found out that Mr, Wang dida’t have a proper licence to operate an intemet bar, and sent him a notice on 1 March 2018 informing him that all is computers and equipment would be confiscated, ‘Advise Mr, Wang on: 1 What legal actions he can take against the decision ofthe Adminstration for Industry and Commerce of Tianhe District (10 matks) 2. Whether or not he is likely to win the cae, and what remedies are avaiable to hit, (15 marks) END: Question One Part I of the question ests students’ knowledge and application of rules on how to resolve a conflict between # legislation of the NPC and a legislation ofthe NPCSC. The answer should ‘mention first that in theory the status of an NPC's legislation is higher than an NPCSC's legislation and the NPC under Article 62 of the Constitution has the authority to repeal a legislation or decision of the NPCSC. Secondly, the answer should mention the relevant provision in the Legislation Law, in particular, Article 45 and paragraph 1 of Anicle 94, Article 45 provides the two grounds under which the NPCSC can interpret a national la. Article 94 gives the authority fo the NPCSC to decide the confit between two national laws, ‘The answer needs to discuss how these provisions should be applied Part It of the question requires students to apply statutory interpretation rules in China t0 Getermine whether there exists an inconsisteney between Article 104 of the Basic Law and the NPCSC’s inerpreation of Anicle 4, in particular, whether “allegiance to the Hong Kong, Special Administrative Region of the People’s Republic of China” can be interpreted (© ‘means “allegiance to the People’s Republic of China and its Hong Kong Administrative nage Part Il of the question tests students’ knowledge and application of rules concerning legislative interretaion in China Students need to know that the final statutory interpretation power sides inthe NPCSC. The answer should point out thatthe Legislation Law has set out who can seek interpretation of national law from the NPCSC and has ‘mentioned them (Article 46 of the Legislation Law). The answer should note that the HK Government is not an organ which can seek legislative interpretation of the Basic Law lirectly under Chinese law Bur that doesn’t meas the HK Government cannot seek an interpretation of the Basic Law indirectly from the N>CSC. Former Chief Executive actually did it. Even if students didn’t ‘know that fect, they should know that the HK Government ean seek assistance from one of the central organs Which have been authorized by the Legislation Law to seck legislative interpretation from the NPCSC. The most obvious one isthe State Counel, which is defined asthe executive branch ofthe Central Government under Chinese Constitution. Question Two The answer should discuss separately the constitutional significance of each of the two amendments. For the insertion of leadership ofthe Communist Party of China into paragraph 2 of Anicle 1 ofthe Constitution, the answer should point out that there exist two different views. One is that itis important because specific articles of the Constitution are binding ‘whereas the preamble ofthe Constitution is not binding. Another view is that the preamble to the Constitution tas the same legal effect as the articles ofthe Constitution, Since leadership ‘of the Communist Party of China is already there in the preamble, it won't make much 5 Aifference by including i in paragraph 2 of Article I again. Second, the answer should note that in practice whether the amendment will make any difference. Then the answer should discuss which view mikes more sens. ‘As tothe second amendment, ie. abolition of two term limit for the President and the Vice Presiden, the answer should first diseuss different views. Again, there are two different views. One isthe view held by many scholars and commentators, ie. the amendment is a drawback, and a meats for President Xi to say in power forever. That may lead to over- ‘concentration of power in one person. The other view is that given that Xi can have actual control even without the postion of the President of State (as he can keep the positions of, President of the Central Military Commission and Secretary General of the Communist Party ‘of China), the amendment is merely t align the three postions. Then the answer should discuss which view makes more sense A really good answer should further discuss whether ‘erm limit really important a there is no term limit n parliamentary system for their prime minister. The essence is whether there is genuine democracy as reflected through well

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