Hong Kong Court’s role in judicial review of legislative process: reassessing the Hong Kong jurispru
Introduction
The doctrine of separation of powers and the rule of law are core values in many modern jurisdictions, such as the United Kingdom, Hong Kong and Israel. The court’s role is to ensure that laws are followed by everyone in the jurisdiction, while also protecting the integrity of the legislature by not undermining its legislative competence. Tension between these two principles is not uncommon. One classic example is where the legislature in the law-making process does not abide by the rules of procedure it has adopted. An approach to resolve the tension is by setting the boundary of judicial review, which is now set by three main techniques: jurisdiction – defining the jurisdiction of the courts, justiciability – holding some functions to be non-justiciable, and discretion – exercising discretion to refuse some claims.[1] Hong Kong and Israeli courts use these techniques differently to answer the question whether, and to what extent, the court should judicially review the legislative process to inquire whether the legislature complied with the rules of procedure (in addition to constitutional procedural requirements). This essay will analyse the jurisprudential differences and argue that a modified Israeli approach would better fit Hong Kong in light of the unique political, doctrinal, and historical, social and cultural attributes of the HKSAR. With respect, Hong Kong courts at all three levels (Court of First Instance, Court of Appeal and Court of Final Appeal) failed to consider these unique attributes in reaching their decisions in Leung Kwok Hung v President of the Legislative Council. [2]
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