Judicial Review of the Legislative Process in Hong Kong: A Comparative Perspective
Shucheng Wang, “Judicial Review of the Legislative Process in Hong Kong: A Comparative Perspective” Statute Law Review (2020 Forthcoming)
City University of Hong Kong School of Law Legal Studies Research Paper No. 2020-002
City University of Hong Kong Centre for Chinese and Comparative Law Research Paper Series Paper No. 2020/04
23 Pages Posted: 3 Sep 2020 Last revised: 19 Jan 2022
Date Written: March 1, 2020
Abstract
This article examines the deferential approach to judicial review of the legislative process as adopted by the Court of Final Appeal in Leung Kwok Hung v The President of Hong Kong Legislative Council. Through a comparative analysis, it explains that the underlying basis on which the doctrines of separation of powers and the parliamentary privilege of exclusive cognizance, and the corresponding principle of non-intervention, are significantly different in Hong Kong. Given Hong Kong’s semi-democratic system under the “one country, two systems” rubric, it argues for a less traditional allocation of power between the different institutions of government and a more assertive judiciary vis-à-vis the legislature. Moreover, it suggests the necessity of developing a human-rights-based approach to the adjudication concerning the non-intervention principle in order to maintain its common law system with liberal principles under the “one country, two systems” rubric.
Keywords: judicial deference; judicial review; legislative process; Hong Kong
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