The Hong Kong Subconstitutional Model of Separation of Powers: The Case of Weak Judicial Review
Hong Kong Law Journal, HKLJ-47(1)-221-241
15 Pages Posted: 29 Jun 2017 Last revised: 6 Jul 2017
Date Written: May 13, 2017
Since the activation of the new constitutional order of Hong Kong on 1 July 1997, a plethora of court decisions have directly or indirectly implemented the concepts of separation of powers, and constitutional review, in its strong form, although all two concepts were not explicitly stipulated in the Basic Law. On the top of that, separation of powers and strong judicial review are distinctive features of the subnational constitutional order of Hong Kong given that they don’t mirror the constitutional configuration of the superstate of China. While this unique configuration is explained by the historical circumstances and is enshrined in the principle of “One Country, Two Systems”, this article takes into consideration the basic component of the separation of powers, the constitutional review, with the aim to distill how the doctrine of separation of powers in Hong Kong is influenced by subconstitutionalism. This article examines the development of judicial review, and how it was perceived and integrated in the current legal order. Then, it continues to analyse the breadth of this concept based on the relevant courts’ decisions. The main argument is that the model of separation of powers in Hong Kong due to its interaction with its subconstitutional character resembles the model of weak judicial review. This is a unique configuration which is explained based on two elements. First, the position of the Court of Final Appeal of Hong Kong at the top level of the hierarchy of the judicial system with the power of the finality, and second, the catalytic role of the National People’s Congress Standing Committee to interpret the Basic Law which can be also triggered by the Chief Executive.
Keywords: Separation of Powers, Judicial Review, Hong Kong Basic Law, Hong Kong
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