Judicial Construction of Hong Kong's Basic Law: Concerns, Organization and Findings

P. Y. Lo 

University of Hong Kong
December 20, 2013

P Y Lo, The Judicial Construction of Hong Kong's Basic Law: Courts, Politics and Society after 1997 (Hong Kong University Press, 2014) 
Abstract:      

China has granted Hong Kong a high degree of autonomy through the Basic Law of the Hong Kong Special Administrative Region 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 exercising the power of interpretation of the Basic Law, the Hong Kong courts have reviewed legislation and executive decisions and have achieved a "second founding" of the Basic Law as an enforceable constitutional instrument. This paper is Chapter 1 of my upcoming book on how the Hong Kong courts, particularly the Hong Kong Court of Final Appeal, gained and used the power of judicial review. It sets out the concerns of the study, including Mainland Chinese skepticism of Hong Kong courts having the power of judicial review, as well as the comparatively more moderate form of review undertaken by the courts of the Macao Special Administrative Region. It also details the organization of the book, which includes a chronological narrative of important court cases since 1997, and analyses of how the Hong Kong courts maintain their relationships with the executive and the legislature of the Hong Kong Special Administrative Region, and with China's Central Authorities, which have the power to interpret authoritatively the provisions of the Basic Law to nullify the precedential effect of the adjudicative interpretation adopted by the Hong Kong Court of Final Appeal of the relevant provision of the Basic Law. The findings of the study are outlined at the end of the paper, underlining particularly the challenge of integration that the Hong Kong courts' position as common law courts in socialist China inevitably poses.

Number of Pages in PDF File: 12

Keywords: China, Hong Kong, Courts of Hong Kong, Judicial review, Basic Law of HKSAR

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2370746