Twenty Years of the Basic Law: Continuity and Changes in the Geoffrey Ma Court
49 Hong Kong Law Journal 209 - 238 (2019)
University of Hong Kong Faculty of Law Research Paper No. 059
Posted: 5 Sep 2019 Last revised: 11 Oct 2019
Date Written: 2019
The Court of Final Appeal (CFA) with Chief Justice Geoffrey Ma at its helm has wisely upheld the Central People’s Government’s core interests in Hong Kong. On the other hand, the Court’s most confrontational and liberal constitutional decisions pertain only to issues that Beijing cares little for — the CFA’s supervisory control over the lower courts, Lesbian, Gay, Bisexual, and Transgender (LGBT) rights, bankruptcy reform, and welfare entitlements — but are of immense constitutional significance in Hong Kong. On domestic law and order issues, there have been modest liberal developments. Instead of openly declaring that the impugned governmental practice is outright unconstitutional, the CFA now more regularly enforces constitutional rights in a way that leaves sufficient decisional space to the legislature or allows the legislature to respond in disagreement using the ordinary political process. Furthermore, the CFA — very attentive to potential governmental backlash — regularly strategically blunt the force of their liberal decisions ex ante so as to secure ex post compliance from the government.
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