| The first chapter mainly illustrates the theories and introduces the behavioral model of justices. Richard Posner, the American legal economy analyst, has analyzed many elements else besides the ideology. He believes that justices have their own preference as they are also mortals. Ponser has listed six items which he thinks to be of great importance:prestige, public interest, reputation, popular confidence, voting and avoidance of verdict revocation. Therefore, not only do justices make a vote to fulfill their ideological needs, but also when they are influenced by external elements, their interpretation of laws will also be affected. In the interactivity of justices, the "Strategical Mode" is adopted; and the design of inner interactivity decides the final judgment of justices. In the interactivity between justices and the administrative and legislative organs, the "Attitudinal Mode" is mainly introduced, according to which the justices, as political subjects, are likely to embody their policy preferences into their legal interpretation. Therefore, we can predict justices'standpoint in certain cases based on their preferences. The Eskridge Model was created to demonstrate that sometimes the verdict being overthrown will cause damage to the justices, but this model has its weaknesses. Finally, the American scholar had put forward the Marks Model that was more comprehensive. However, the scholars in the U.S. and the Taiwan district hold the view that the legislative organ is quire unlikely to restrain the court justices, and on the contrary, the legal community has a strong influence on the behavioral model of the justices. At last the paper introduces the academic finds of the Taiwan district scholars concerning this issue and demonstrates the Marks model applicable to the justices in Taiwan district.The second chapter has given a detailed introduction of Hong Kong Court of Final Appeal and the court system. The Hong Kong Basic Law has endowed Hong Kong SAR the independent judicial power and the power of final appeals. The Court of Final Appeal consists of tribunals, committee of appeal, committee of regulations and registrars. Its jurisdiction includes the general jurisdiction, jurisdiction of appeal, of civil cases and of criminal cases as well as leave to appeal. Compared to the legislative and administrative activities, the judicial actions contain more expertise; hence the judiciary must be in hands of people who specialize in law so as to guarantee the strict obedience of laws. Not only do justices need self-discipline, but they are also in need of institutional restraint. The justices of Hong Kong have achieved specialization and expertise in its institutionalization. From July 1st 1997, Mr. Li Guoneng was the Chief Justice of Hong Kong Court of Final Appeal; after that until now it is Mr. Ma Daoli who presides over the Court. Both these two chief justices were born in a wealthy family and had outstanding background. They obtained their degrees in the Common Law countries and districts and had long been working in the legal system. Their abilities and attitudes towards their work had received high praise. It is noticeable that almost all the legal or political disputes took place while Chief Justice Li Guoneng was in charge of the Court, and the majority of these cases were about the Right to Abode in Hong Kong. When Mr. Li was retired from his duty in September 2010, he recommended Mr. Ma to be his successor who was exactly the barrister representing the Director of Immigration Office in the case Ng Ka Ling and Another v. The Director of Immigration. After Mr. Ma became the Chief Justice of the Court, the tension between the Central Government and the Hong Kong SAR was much relieved and he had adopted a more conservative way in dealing with issues between the Standing Committee of the National People's Congress and the Hong Kong Court of Final Appeal.The third chapter intends to prove that methods of interpreting the Basic Law used by the Justices of the Hong Kong Court of Final Appeal were very flexible so that justices were not abiding by them. Principles and measures of interpreting the Constitutional laws are abundant and have their own advantages. Philip Bobbit, the American scholar, had put forward very satisfactory principles and measures of interpreting the Constitutional laws. Before 1997, when Hong Kong was the colony of the Great Britain, its constitutional system had determined that there are interpretation methods in two levels:first, the Judicial Committee of the Privy Council interprets the law as Hong Kong Court of Final Appeal and the highest law interpretation organ; second, the Hong Kong local courts'interpretation of the laws. Article 8 and Article 158 of the Hong Kong Basic Law have introduced two constitutional frameworks: Article 8 has recognized the laws in the British colonial era, putting the Constitutionalism in Hong Kong still in the Common Law system; while Article 158 has introduced the Statute Law system by acknowledging the power of interpretation of the Basic Law by the Standing Committee of National People's Congress. Methods used by Hong Kong Court of Final Appeal to interpret laws have been under the framework of both Common Law system as well of the Statute Law system, which is quite apparent. Interpretation methods utilized by justices are very flexible and they will choose different measure according to their actual needs. As a result, the above-mentioned interpretation methods are not biding upon the justices. As for in the various levels of Hong Kong Courts, especially the Court of Final Appeal, this conclusion still applies, which is to say that under the influence of both Common Law system as well of the Statute Law system, their interpretation of the Hong Kong Basic Law does not abide by the fixed methods and therefore it is becoming very unpredictable.The fourth chapter is the core one of the whole passage where the Marks Model applicable to Hong Kong Court of Final Appeal is established. The Hong Kong SAR has adopted a Executive-led political system, the chief executive is a more advantageous position than the others. Not only has the Basic Law stipulated the restraint on the judicial organ by the administration, but in practice this sort of restraint is also obvious. Besides, the judicial power of the Hong Kong Courts vest in the National People's Congress and Article 158 of the Hong Kong Basic Law has given both the Standing Committee of National People's Congress and the Hong Kong Courts power to interpret the Basic Law, so has it become the main mechanism to divide the power distribution. Therefore, the power division and distribution have become the priority in terms of the right position and standpoint of the Hong Kong Courts under the premise that China has the full reign and the principle of "One Country, Two Systems". In a variety of cases by the Hong Kong Court of Final Appeal, it has reflected that the Standing Committee of National People's Congress has a strong influence on the Hong Kong Court of Final Appeal. Moreover, the influence coming from the legal community must also be taken into consideration. The impact from the legal community expresses themselves in two aspects:first being the manner used in the law interpretation and second being the preference of certain systems. Based on all these, the writer has put forward the Marks Model applicable to the justices of Hong Kong Court of Final Appeal. However, it is also the author's opinion that this Model is not fixed, but one that changes in line with the Chief Justice of Hong Kong Court of Final Appeal. To be more specific, the Model differs in Mr. Li Guoneng' era and Mr. Ma Daoli' era. In the former era, when judges are making a verdict, their preference reflected on the Marks Model is close to the preference of the legal community; however, after Mr. Ma Daoli has become the Chief Justice, the preference reflected on the Marks Model is getting close in the otherwise direction, the direction of Standing Committee of National People's Congress and the Hong Kong Government to be exact. |
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