HISTORY citizens were not treated in a fair
Posted On May 30, 2019
HISTORY OF HONG KONGHong Kong was a British colony till 1970 during which human rights of the citizens were limited by its colonisers to an extent. As a British colony Hong Kong was formal under complete British influence, but at the same time autonomous to a large extent (HORLEMANN, Die Rückgabe Hongkongs und seine neue Verfassung, 101). Hong Kong has been an important country for South-east asia, China and even the West primarily because of the trade route it provides between the west and south-east asia. During the British rule, before the Hong Kong Bill of Rights Ordinance was enacted 1991, there were no human right treaties for Hong Kong citizens and Britain denied the right of access to the European Commission and the European Court of Human Rights to Hong Kong inhabitants (4 JAYAWICKRAMA, The Bill of Rights, 63). In 1997 the British empire gave up its control over Hong Kong and China declared it a Special Administrative Region. Although Hong Kong remains stable under a liberal, capitalist, common law system and receives a high degree of autonomy (DAVIS, Constitutional Confrontation in Hong Kong, 1.) a high degree of autonomy does not mean complete independence from China. The ‘one country, two systems’ policy allows two distinct legal systems to function and coexist together and the country has been under the same system for the last 20 years. China has control over Hong Kong but the laws in Mainland and Hong Kong differ greatly. The rule of law in Hong Kong protects the human rights of its citizens to a great extent which is a consequence of the country’s history. HISTORY OF TAIWANTaiwan has seen a change of rulers throughout its course of history. The Dutch were the earliest known colonisers followed by the Spanish. The Qing dynasty ruled over Taiwan soon after them, and with the coming of the dynasty Taiwan saw a number of reforms in its legal system. Taiwan was then annexed by the Japanese after winning the Sino-Japanese war. The citizens of Taiwan did not like being ruled by the Japanese. The Japanese military rulers exploited Taiwan’s resources, suppressed dissent, forced the population to use Japanese instead of their own languages, clamped down on personal freedoms and brutally cracked down on political dissent (http://factsanddetails.com/southeast-asia/Taiwan/sub5_1a/entry-3796.html). The citizens were not treated in a fair manner and their human rights were not respected. In 1945, Taiwan again saw a shift in in power, from the Japanese government to the Republic of China which till date rules over it. Human rights are protected in the country but the past had a huge role in shaping the country’s present. CONSTITUTIONAL FACTORSHONG KONGThe rule of law in Hong Kong along with the Basic Law was responsible for the protection of human rights in the country. The Basic Law of Hong Kong Special Administrative Region of the People’s Republic of China was adopted in 1990 before independence from the British but came into effect only by 1997. The drafting process of the Basic Law was quite different compared to other laws enacted in the HKSAR (http://www.ivr.uzh.ch/dam/jcr:ffffffff-ec76-c8f9-ffff-ffff9e8d0d07/Furrer_Nicole.pdf). The drafting was done by members of both mainland as well as hong kong and being a British colony the constitution is a mix of both liberal capitalist nature of Britain along with the socialist system of Mainland. In the past under the British rule the citizens of Hong Kong were not allowed to approach the European courts to seek justice for their violation of rights but since the drafting of the Basic Law in Hong Kong human rights of the citizens are well protected. The scope of the protection of human rights under the Basic Law is extensive (http://www.ivr.uzh.ch/dam/jcr:ffffffff-ec76-c8f9-ffff-ffff9e8d0d07/Furrer_Nicole.pdf). The Basic Law provides all the fundamental human rights such as equality among the eyes of the law, universal adult suffrage along with other freedoms such as freedom of expression etcetera. The constitution, that is the Basic Law of Hong Kong hence ensures that human rights of all its citizens are protected.TAIWAN The constitution of Taiwan recognises and protects the human rights of all its citizens. Taiwan had its constitution ready in 1946 but it took the country forty years after adopting the constitution to implement it. Taiwan took a lot of time to implement its constitution and hence all the rights entitled to the citizens of the country were not really effective. If enacting a constitutional bill of rights or signing an international treaty of human rights means that the people of a certain country have accepted the ideas of human rights, this was by no means the case in Taiwan (http://www.law.ntu.edu.tw/ntulawreview/articles/1-1/5WC001-04-Article-Chao-ChunLin_%E6%9E%97%E8%B6%85%E9%A7%BF_.pdf). Though by late 1980s the bill of rights in Taiwan actually was implemented and the Grand Justices of the Judicial Yuan solidified the protection of human rights.Although in the recent decade the Grand Justices of the Judicial Yuan has achieved significant success in fulfilling the function of the ROC Constitutional Bill of Rights, there are still some serious problems contained within the current system of human rights law (http://www.law.ntu.edu.tw/ntulawreview/articles/1-1/5WC001-04-Article-Chao-ChunLin_%E6%9E%97%E8%B6%85%E9%A7%BF_.pdf). The constitution of taiwan is unlimited and uncertain this is because the Grand justice of Taiwan has the powers to invoke any other foreign constitutional jurisprudence to help overcome the country of any problems faced by them. Despite the major drawback of the constitution, the bill of rights is properly documented, followed and amended from time to time and provides for basic human rights and the protection of every citizen through these rights. SOCIAL FACTORSHONG KONGThe colonial past of Hong Kong, which was gravely unequequal towards the citizens of the country made them realise the importance of strong human rights for themselves. The colonial history and the disinterest of the colonial power in developing a deeply entrenched system of human rights have created a unique situation after the handover in 1997 (http://www.legco.gov.hk/yr06-07/english/panels/ha/ha_hrpm/papers/ha_hrpm0428-1731-3-e.pdf). The unfair treatment by its colonisers forced citizens to engage in strengthening of their own rights while drafting the Basic Law. The people of Hong Kong are conscious of their rights and since they have the right to approach the courts they do exercise this power in case of violation of their rights. The fact that people of Hong Kong are increasingly seeking accountability from the government of the HKSAR in all its actions is an important step in the right direction for promoting a human rights culture (http://www.legco.gov.hk/yr06-07/english/panels/ha/ha_hrpm/papers/ha_hrpm0428-1731-3-e.pdf). The active participation of people of the country protesting to protect their rights evidently shows the freedom from fear, which is an important freedom that all citizens should have. Freedom from fear opens the horizons to exercise the rights entitled to them and build a society which respects and appreciates human rights available to them.TAIWANTaiwan saw a delay in implementing their constitution and hence a delay in securing their rights which is a primary reason for active involvement of the citizens in protecting their rights. The first forty years after adopting a constitution was rough as the constitution was not implemented leaving the country in confusion as to what their actual rights are. Post the solidification of human rights by the Grand Justices of the Judicial Yuan things changed. The rights of the citizens became clear and the country moved towards safeguarding their human rights. Though a major drawback in restricting the citizens to exercise their rights fully is that upon foreign constitutional jurisprudence invoked by the Grand Justices are not well explained. The Grand Justices seldom tell the citizens why they appropriate certain foreign constitutional theories (http://www.legco.gov.hk/yr06-07/english/panels/ha/ha_hrpm/papers/ha_hrpm0428-1731-3-e.pdf). This restricts the involvement of civilians in decisions made by the Grand Justices which affect them. Questioning their decisions, on the other hand is a positive sign showing active involvement in matters related to the country as this shows people do care about their rights and fear being denied of what they are entitled to. The people of Taiwan hence show that the human rights culture is strong in their country. The people of Taiwan indeed are conscious about their rights and their participation shows their involvement in protecting them.LEGAL FACTORSHONG KONGThe legal system of Hong Kong protects the human rights of all its citizens and has the right to prosecute those who violate these rights. The Basic Law provides for access to the legal system in various provisions. Amongst others, confidential legal advice and access to courts and lawyers are protected ( Article 35 of the Basic Law). The legal system in Hong Kong is such that every citizen is treated equal under the law and everyone enjoys the same rights. There are many legal factors that help strengthen the human rights of all its citizens. For example, the legal system allows presumption of acquitted convicts to be innocent until proven guilty along with a trial without any bias which is a fundamental right. A strong legal system has been a foundation to ensure human rights of every citizen is protected. The rights in respect of the legal process are arranged in a more comprehensive manner in the Bill of Rights (4 GHAI, Hong Kong’s New Constitutional Order, 433). It contains the list of all rights a citizen of hong kong is entitled to. Basic human rights such as Freedom of thought, conscience and religion, Freedom of opinion and expression etcetera are all listed in this bill of rights. This bill, hence provides legal protection to every citizen from getting denied the right entitled to them.TAIWANThe legal system in Taiwan comprises of two types of rules, namely primary and secondary rules. The function of primary rules is to impose duties or obligations on people, i.e., to identify an individual’s responsibility to do or not to do something whereas secondary rules are not directly relevant to individuals, but instead are pertinent to primary rules (http://www.legco.gov.hk/yr06-07/english/panels/ha/ha_hrpm/papers/ha_hrpm0428-1731-3-e.pdf). This union of rules helps legal system flourish in a more complex and effective manner. This system also helps in carrying out the law in a more procedural and smooth way. The primary rules are just basically the procedural do’s and don’ts for every citizen of the country but the secondary law helps keep a check on individuals trying to breach the primary rules. The legal system therefore helps in keeping everyone under check in case of a misconduct shown by individuals violating someone else’s rights or not fulfilling his/her duty as a citizen of the country. The legal system thus, is a proof that human rights of the people are protected by the country.CONCLUSIONHong Kong and Taiwan are both a part of China and are quite similar yet different from each other in terms of the rule of law, legal system and their consequences on protection of legal system. Both the countries have very different histories. Hong Kong was under the British colonial rule whereas Taiwan saw a change in power throughout its course of history. Taiwan and Hong Kong both took a long time to implement their own constitutions which meant a delay in its citizens being provided with the rights they were entitled to. Though after the implementation of the constitution the difference between the two countries surfaced. Taiwan’s constitution is such that its Grand Justices appeal to different countries’ constitutional jurisprudence to substantiate the contents of various individual rights from time to time (http://www.legco.gov.hk/yr06-07/english/panels/ha/ha_hrpm/papers/ha_hrpm0428-1731-3-e.pdf). This can violate the human rights of any individual of the country if the invoked foreign jurisprudence is not backed with sufficient reasoning. In Hong Kong amendments in the constitution are made with due diligence and standard procedures hence rights are seldom violated by this process. The protection of human rights have different constitutional approaches in the two countries.Both Hong Kong and Taiwan are similar when it comes to the involvement of the citizens of the country in protecting their own rights. Citizens in both the countries are aware and know their rights. The people fight in case their rights get violated and have a human rights culture. In Taiwan the participation of people in questioning the decisions of the Grand Justices is an example of that. The people of Hong Kong often protest in case of any rights denied to them either by a group of individuals or by the government. Hence, socially the scenario in both countries is similar in protecting the human rights of all citizens. The legal approach to tackle protection of human rights in the two countries. In spite of having very similar legal system the difference comes in the implementation of laws in the two countries. Hong Kong has strong courts and hence seeking justice in case of infringements of rights is easy. The courts in Hong Kong carry out a fair trial along with the accused to be found innocent until proven guilty. The case is similar in Taiwan a trial is carried out without bias too but since the judiciary has a close link with politics in the country at times a trial might be misconducted which is a huge breach of human rights of any individual on trial. For a strong legal system to flourish in a country the judiciary has to be isolated from any kinds of political involvement. This is the basic difference between the legal approach to protection of human rights in both the countries.