The Judicial Construction of Hong Kong’s Basic Law

Courts, Politics and Society after 1997

Lo Pui Yin

• Publisher: Hong Kong University Press
• Year: 2014
• Topic: Law
• eBook ISBN:
  9789888455669
• Subtopic: Public Law
• Index: Law

China has granted Hong Kong a high degree of autonomy through the Basic Law under the principle of "one country, two systems". Hong Kong's legal system under the Basic Law is based on the common law and is administered by independent courts. By interpreting the Basic Law, Hong Kong's courts have reviewed legislation and executive decisions, and have achieved a "second founding" of the Basic Law as an enforceable constitution. This book is the first comprehensive account of how the Hong Kong courts gained this vital power of judicial review. Through an analysis of important court cases since 1997, the book also examines how the Hong Kong courts maintain their relationships with the executive and legislature, and with China's Central Authorities, which have been sceptical of these achievements. Hong Kong's unique status as a common law jurisdiction within socialist China poses risks of integration: this book concludes that the best choice lies in maintaining and developing a cosmopolitan judicial outlook.

Table of contents

• Contents
• Preface
• Acknowledgements
• Abbreviations
• Table of Cases
• Table of Legislation
• Part 1: Introduction and Background to the Study
• 1. Concerns and Organization
• 2. The Multifaceted Basic Law and Its Assumed Purpose
• 3. The Background of Concepts
• Part 2: The Pioneering Judicial Voyage: 1997–2013
• 4. 1997–1998: Introspective Institutional Clarification
• 5. 1999: The Triumph, Tragedy and Restarting of Constitutional Assertiveness
• 6. 2000–2001: Demonstrating the Common Law Approach
• 7. 2002–2003
• 8. 2004–2005
• 9. 2006: A Significant Year
• 10. 2007–2008: The Courts of Judicature under the Separation of Powers of the Basic Law
• 11. 2009–2010: An Unexpected Transitional Period
• 12. 2011–2013: The Gathering Politicization of the Judicial Process
• 13. The Judicial Review Phenomenon and Fundamental Choice
• Part 3: The HKSAR Courts’ Vulnerable Judicial Supremacy
• 14. The Jurisprudence that Constitutes the Claim and Initial Observations
• 15. Mainland Scholarship Questions HKSAR Judicial Review of Legislation
• 16. The Practice in the Courts of the Macao Special Administrative Region
• 17. In Defence of Judicial Review of Legislation by the Courts of the HKSAR: Supplementing an Under-theorized Exposition
• 18. Conclusion: Arguably Less Vulnerable, Barring Local Politics
• Part 4: The Intra-SAR Relationships: The Executive, the Legislature and the Judiciary
• 19. The Declaratory Judgment in Exercise of Constitutional Jurisdiction and Its Enforcement beyond the Four Walls of the Court
• 20. Justiciability and Political Questions
• 21. Justification and Deference: The Proportionality Analysis
• 22. Remedies Following Constitutional Adjudication
• 23. Procedural Reactions to the Judicial Review Phenomenon
• 24. Managing the Political Risk of Judicial Review: Strategic Judging within the HKSAR
• Part 5: The Central-SAR Relationship
• 25. Introduction
• 26. Article 19 of the Basic Law of the HKSAR
• 27. Article 158 of the Basic Law of the HKSAR
• 28. Article 18 of the Basic Law of the HKSAR
• 29. Articles 20, 21, 22, 48(8) and 131 of the Basic Law of the HKSAR
• 30. Article 159 of the Basic Law of the HKSAR
• 31. ‘Second-Best’ Constitutionalism
• Part 6: Reconstructing the Judicial or Judicial Reconstruction
• 32. The Challenge of the ‘Second Founding’
• Bibliography
• Appendix: Excerpts of the Basic Law of the HKSAR
• Index