Executive and Legislative Reactions to Judicial Declarations of Constitutional Invalidity in Hong Kong: Engagement, Acceptance or Avoidance?

24 Pages Posted: 31 Jul 2015

See all articles by Swati Jhaveri

Swati Jhaveri

National University of Singapore (NUS) - Faculty of Law

Anne Scully-Hill

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Date Written: July 29, 2015

Abstract

Since 1997, Hong Kong has had its own “mini-constitution” in the form of the Basic Law. To date, there has been little scrutiny of the relationship between the courts and the legislature and executive in terms of the court’s impact on the subsequent actions of the latter two arms of government. It is unclear how the other branches of government have responded to judicial review proceedings, or what this tells us about the relative involvement of the three institutions in the evolution of constitutional meaning. This article looks at the interaction between the different institutions following judicial review proceedings relating to particular legislation. The article considers cases where courts issued a finding of constitutional invalidity of legislation or policy and what the legislature and administration did to rectify it. This paper considers what these responses say about the relationship between the different institutions. In evaluating these cases, we will consider, inter alia, the pathways signposted in the judgments for the better enforcement of constitutional norms by the executive and legislature as well as the actions of the executive and legislature in any subsequent law-making process.

Keywords: Judicial Review, Constitutional Law, Administrative Law, Dialogue, Hong Kong, Basic Law

Suggested Citation

Jhaveri, Swati and Scully-Hill, Anne, Executive and Legislative Reactions to Judicial Declarations of Constitutional Invalidity in Hong Kong: Engagement, Acceptance or Avoidance? (July 29, 2015). I•CON (2015), Vol. 13 No. 2, 507-529; The Chinese University of Hong Kong Faculty of Law Research Paper No. 2015-06. Available at SSRN: https://ssrn.com/abstract=2637734

Swati Jhaveri (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

Anne Scully-Hill

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

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