Levitating Unconstitutional Law

Hong Kong Law Journal, Vol. 36, pp. 433-442, 2006

10 Pages Posted: 20 Jun 2010

See all articles by P. Y. Lo

P. Y. Lo

The University of Hong Kong

Date Written: January 19, 2006

Abstract

The Court of Final Appeal postponed the operation of declarations of unconstitutionality in the recent judicial review against the statutory power and the claimed legitimate basis of the HKSAR Government for conducting interception of telecommunications and covert surveillance, to give a specified period of time for the enactment of “corrective legislation.” This analysis examines the Court’s judgment and considers, by reference to the nature of declaratory orders, that the claimed inherent basis of the judicial power to suspend a declaration of unconstitutionality so as to postpone its operation to another date does not necessarily justify; and that for such an exceptional withholding of remedy to properly apply, truly exceptional circumstances must be shown.

Keywords: Hong Kong, Basic Law, Judicial power, Constitutional adjudication, Declaration of unconstitutionality, Suspension

Suggested Citation

Lo, P. Y., Levitating Unconstitutional Law (January 19, 2006). Hong Kong Law Journal, Vol. 36, pp. 433-442, 2006, Available at SSRN: https://ssrn.com/abstract=1627684

P. Y. Lo (Contact Author)

The University of Hong Kong ( email )

Pokfulam Road
Hong Kong, Pokfulam HK
China

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