Pressing the Government Through Law in Hong Kong: Locating the Judicial Role in Governance
Posted: 20 Jun 2010
Date Written: October 27, 2008
The exercise of judicial power in public law in Hong Kong may be viewed in terms of an interaction between the individual applicants and the judiciary and their contrasting agenda. While the politically active members of the public have sought to put forward, through the available support network of legal mobilization, applications for judicial review as an instrument for social change and progress, the courts has adopted a restrained approach emphasizing on its limited supervisory role in determining such applications. This continuing emphasis on legality not only takes an incomplete view of administrative law by omitting the insistence on demonstrable rationality in decision-making, but also works on an impoverished reading of the judicial role under the Basic Law. There is a reading of the Basic Law that makes it possible to locate a role for the courts of the HKSAR based upon the expository function of holding the other intra-SAR branches of government accountable to the SAR without putting the courts illegitimately in the driving seat.
Keywords: Hong Kong, Basic Law, Judicial power, Public interest litigation, Accountability
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