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The Autonomy of Law and a Case of Judicial Exceptionalism in Post-War Hong Kong

16 Pages Posted: 10 Jan 2012 Last revised: 2 Feb 2012

Rohan Price

University of Tasmania - Faculty of Law; Dalian Maritime University Law School

Date Written: January 10, 2012

Abstract

A comprehensive body of case law developed in the immediate postwar years which interpreted and applied Proclamation No. 15 - Landlord and Tenant (1945) and this article probes it with reference to the precepts of "the relative autonomy of law" which was proposed by a number of theorists in the 1960s and 1970s.The BMA’s policy rent control and preservation of residential tenure were realized by a sympathetic predisposition towards tenants in the Tenancy Tribunal on natural justice grounds which, on appeal, the District Court shored up by reference to the legal requirements of the Proclamation. In the major cases when the landlord prevailed in the District Court, it is notable that the Tribunal was, in one case, admonished for not having a sufficiently hard-headed reason for it siding with the tenant (Ching Sum Co) and, in the other, the landlord won because the Tribunal made a factual error in relation to the bona fides of the tenant (Re On Lok Co). A closer examination of the case law shows that the District Court permitted the executive’s pro-tenant policy to prevail if the reasons for decision in a tenant’s favor in the Tenancy Tribunal could be dressed up in legal terms and the tenant was not so repulsive as to make a finding of their bona fides impossible. This note argues that judicial independence was proclaimed in Hong Kong by the Bench in exceptional cases while the trend of decisions indicates nothing short of loyalty to the executive.

Keywords: rule of law, judicial independence, rent control policy, Hong Kong

JEL Classification: R38, K10

Suggested Citation

Price, Rohan, The Autonomy of Law and a Case of Judicial Exceptionalism in Post-War Hong Kong (January 10, 2012). Available at SSRN: https://ssrn.com/abstract=1982466 or http://dx.doi.org/10.2139/ssrn.1982466

Rohan Price (Contact Author)

University of Tasmania - Faculty of Law ( email )

Private Bag 89
Hobart, TAS 7001
Australia

HOME PAGE: http://www.utas.edu.au/law/people/law-people-profiles/Rohan-Price

Dalian Maritime University Law School ( email )

1 Linghai Road
Dalian, 116026
China

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