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Chapter 23: Procedural Reactions to the Judicial Review Phenomenon

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The Judicial Construction of Hong Kong’s Basic Law
This chapter is in the book The Judicial Construction of Hong Kong’s Basic Law
Chief Justice Andrew Li was concerned about the growth of judicial review, be it of legislation or administrative decisions, towards the end of his judicial career.1This growth was not purely explained by increasing numbers, as the number of applications for leave to apply for judicial review has remained relatively steady over the years in question.2 The growth and developments Chief Justice Li addressed in his public statements until his retirement had more to do with the variety of applications, the legal and, increasingly more, constitutional ques-tions presented for determination, and the high profi le that surrounded some of them. Although the Chief Justice attributed this growth of judicial review to common enough factors such as an increasingly complex and legally regulated modern life, the advent of rights-protecting constitutional instruments, and a better educated citizenry having higher expectations of public institutions and better access to legal representation,3 Albert Chen’s survey of judicial review cases up to 2005 illustrates that social movements in Hong Kong have made use of the law as an instrument of mobilization to further their objectives.4 This Chapter 23Procedural Reactions to the Judicial Review Phenomenon1 See Andrew Li, ‘Chief Justice’s Speech at Ceremonial Opening of the Legal Year 2006’ (9 January 2006) at: http://www.info.gov.hk/gia/general/200601/09/P200601090137.htm (last visited on 6 May 2011). The Chief Justice reiterated the matter in speeches in subsequent years.2 ie 29 (1988), 75 (1990), 102 (2002), 125 (2003), 150 (2004), 155 (2005), 132 (2006), 143 (2007), 147 (2008), 144 (2009), 134 (2010), 103 (2011); see Benny Tai, ‘The Situation and Trends of Judicial Review in Hong Kong’, in Wong  Siu-lun, Wan  Po-San and Leung Sai-wing (eds), The Face of Chinese Societies in the New Century: An Analysis of Social Indicators (Hong Kong: Hong Kong Institute of Asia-Pacifi c Studies, Chinese University of Hong Kong, 2008) pp 57–75 at p 64 (Table 1 with fi gures between 2002 and 2005); and Benny Tai, Judicial Review and Good Governance (Hong Kong: Chung Hwa Book Co, 2012) p 170 (Table 1 with fi gures between 1988 and 2011). The number rose to 161 in 2012; see Judiciary Administrator, ‘Examination of Estimates of Expenditure 2013–2014: Controlling Offi cer’s Reply ( JA005) to Initial Written Question (1364)’ (9 April 2013).3 See Andrew Li, ‘Chief Justice’s Speech at Ceremonial Opening of the Legal Year 2006’ (9 January 2006) at: http://www.info.gov.hk/gia/general/200601/09/P200601090137.htm (last visited on 6 May 2011).4 Albert Chen, ‘Social Movements and the Law in Post-Colonial Hong Kong’, in Khun-eng Kuah-Pearce and Gilles Guiheux (eds), Social Movements in China and Hong  Kong: The Expansion of Protest Space (Amsterdam: Amsterdam University Press, 2009) pp 65–90.
© 2014 Hong Kong University Press

Chief Justice Andrew Li was concerned about the growth of judicial review, be it of legislation or administrative decisions, towards the end of his judicial career.1This growth was not purely explained by increasing numbers, as the number of applications for leave to apply for judicial review has remained relatively steady over the years in question.2 The growth and developments Chief Justice Li addressed in his public statements until his retirement had more to do with the variety of applications, the legal and, increasingly more, constitutional ques-tions presented for determination, and the high profi le that surrounded some of them. Although the Chief Justice attributed this growth of judicial review to common enough factors such as an increasingly complex and legally regulated modern life, the advent of rights-protecting constitutional instruments, and a better educated citizenry having higher expectations of public institutions and better access to legal representation,3 Albert Chen’s survey of judicial review cases up to 2005 illustrates that social movements in Hong Kong have made use of the law as an instrument of mobilization to further their objectives.4 This Chapter 23Procedural Reactions to the Judicial Review Phenomenon1 See Andrew Li, ‘Chief Justice’s Speech at Ceremonial Opening of the Legal Year 2006’ (9 January 2006) at: http://www.info.gov.hk/gia/general/200601/09/P200601090137.htm (last visited on 6 May 2011). The Chief Justice reiterated the matter in speeches in subsequent years.2 ie 29 (1988), 75 (1990), 102 (2002), 125 (2003), 150 (2004), 155 (2005), 132 (2006), 143 (2007), 147 (2008), 144 (2009), 134 (2010), 103 (2011); see Benny Tai, ‘The Situation and Trends of Judicial Review in Hong Kong’, in Wong  Siu-lun, Wan  Po-San and Leung Sai-wing (eds), The Face of Chinese Societies in the New Century: An Analysis of Social Indicators (Hong Kong: Hong Kong Institute of Asia-Pacifi c Studies, Chinese University of Hong Kong, 2008) pp 57–75 at p 64 (Table 1 with fi gures between 2002 and 2005); and Benny Tai, Judicial Review and Good Governance (Hong Kong: Chung Hwa Book Co, 2012) p 170 (Table 1 with fi gures between 1988 and 2011). The number rose to 161 in 2012; see Judiciary Administrator, ‘Examination of Estimates of Expenditure 2013–2014: Controlling Offi cer’s Reply ( JA005) to Initial Written Question (1364)’ (9 April 2013).3 See Andrew Li, ‘Chief Justice’s Speech at Ceremonial Opening of the Legal Year 2006’ (9 January 2006) at: http://www.info.gov.hk/gia/general/200601/09/P200601090137.htm (last visited on 6 May 2011).4 Albert Chen, ‘Social Movements and the Law in Post-Colonial Hong Kong’, in Khun-eng Kuah-Pearce and Gilles Guiheux (eds), Social Movements in China and Hong  Kong: The Expansion of Protest Space (Amsterdam: Amsterdam University Press, 2009) pp 65–90.
© 2014 Hong Kong University Press

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Preface ix
  4. Acknowledgements xi
  5. Abbreviations xiii
  6. Table of Cases xv
  7. Table of Legislation xxxv
  8. Part 1: Introduction and Background to the Study
  9. Chapter 1: Concerns and Organization 1
  10. Chapter 2: The Multifaceted Basic Law and Its Assumed Purpose 15
  11. Chapter 3: The Background of Concepts 19
  12. Part 2: The Pioneering Judicial Voyage: 1997–2013
  13. Chapter 4: 1997–1998: Introspective Institutional Clarification 67
  14. Chapter 5: 1999: The Triumph, Tragedy and Restarting of Constitutional Assertiveness 73
  15. Chapter 6: 2000–2001: Demonstrating the Common Law Approach 83
  16. Chapter 7: 2002–2003 91
  17. Chapter 8: 2004–2005 109
  18. Chapter 9: 2006: A Significant Year 127
  19. Chapter 10: 2007–2008: The Courts of Judicature under the Separation of Powers of the Basic Law 139
  20. Chapter 11: 2009–2010: An Unexpected Transitional Period 143
  21. Chapter 12: 2011–2013: The Gathering Politicization of the Judicial Process 147
  22. Chapter 13: The Judicial Review Phenomenon and the Fundamental Choice 173
  23. Part 3: The HKSAR Courts’ Vulnerable Judicial Supremacy
  24. Chapter 14: The Jurisprudence that Constitutes the Claim and Initial Observations 177
  25. Chapter 15: Mainland Scholarship Questions HKSAR Judicial Review of Legislation 185
  26. Chapter 16: The Practice in the Courts of the Macao Special Administrative Region 205
  27. Chapter 17: In Defence of Judicial Review of Legislation by the Courts of the HKSAR: Supplementing an Under-theorized Exposition 215
  28. Chapter 18: Conclusion: Arguably Less Vulnerable, Barring Local Politics 239
  29. Part 4: The Intra-SAR Relationships: The Executive, the Legislature and the Judiciary
  30. Chapter 19: The Declaratory Judgment in Exercise of Constitutional Jurisdiction and Its Enforcement beyond the Four Walls of the Court 243
  31. Chapter 20: Justiciability and Political Questions 263
  32. Chapter 21: Justification and Deference: The Proportionality Analysis 281
  33. Chapter 22: Remedies Following Constitutional Adjudication 313
  34. Chapter 23: Procedural Reactions to the Judicial Review Phenomenon 327
  35. Chapter 24: Managing the Political Risk of Judicial Review: Strategic Judging within the HKSAR 349
  36. Part 5: The Central-SAR Relationship
  37. Chapter 25: Introduction 355
  38. Chapter 26: Article 19 of the Basic Law of the HKSAR 359
  39. Chapter 27: Article 158 of the Basic Law of the HKSAR 371
  40. Chapter 28: Article 18 of the Basic Law of the HKSAR 443
  41. Chapter 29: Articles 20, 21, 22, 48(8) and 131 of the Basic Law of the HKSAR 445
  42. Chapter 30: Article 159 of the Basic Law of the HKSAR 447
  43. Chapter 31: ‘Second-best’ Constitutionalism 459
  44. Part 6: Reconstructing the Judicial or Judicial Reconstruction
  45. Chapter 32: The Challenge of the ‘Second Founding’ 465
  46. Bibliography 509
  47. Appendix: Excerpts of the Basic Law of the HKSAR 551
  48. Index 559
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https://doi.org/10.1515/9789888455669-028

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Preface ix
  4. Acknowledgements xi
  5. Abbreviations xiii
  6. Table of Cases xv
  7. Table of Legislation xxxv
  8. Part 1: Introduction and Background to the Study
  9. Chapter 1: Concerns and Organization 1
  10. Chapter 2: The Multifaceted Basic Law and Its Assumed Purpose 15
  11. Chapter 3: The Background of Concepts 19
  12. Part 2: The Pioneering Judicial Voyage: 1997–2013
  13. Chapter 4: 1997–1998: Introspective Institutional Clarification 67
  14. Chapter 5: 1999: The Triumph, Tragedy and Restarting of Constitutional Assertiveness 73
  15. Chapter 6: 2000–2001: Demonstrating the Common Law Approach 83
  16. Chapter 7: 2002–2003 91
  17. Chapter 8: 2004–2005 109
  18. Chapter 9: 2006: A Significant Year 127
  19. Chapter 10: 2007–2008: The Courts of Judicature under the Separation of Powers of the Basic Law 139
  20. Chapter 11: 2009–2010: An Unexpected Transitional Period 143
  21. Chapter 12: 2011–2013: The Gathering Politicization of the Judicial Process 147
  22. Chapter 13: The Judicial Review Phenomenon and the Fundamental Choice 173
  23. Part 3: The HKSAR Courts’ Vulnerable Judicial Supremacy
  24. Chapter 14: The Jurisprudence that Constitutes the Claim and Initial Observations 177
  25. Chapter 15: Mainland Scholarship Questions HKSAR Judicial Review of Legislation 185
  26. Chapter 16: The Practice in the Courts of the Macao Special Administrative Region 205
  27. Chapter 17: In Defence of Judicial Review of Legislation by the Courts of the HKSAR: Supplementing an Under-theorized Exposition 215
  28. Chapter 18: Conclusion: Arguably Less Vulnerable, Barring Local Politics 239
  29. Part 4: The Intra-SAR Relationships: The Executive, the Legislature and the Judiciary
  30. Chapter 19: The Declaratory Judgment in Exercise of Constitutional Jurisdiction and Its Enforcement beyond the Four Walls of the Court 243
  31. Chapter 20: Justiciability and Political Questions 263
  32. Chapter 21: Justification and Deference: The Proportionality Analysis 281
  33. Chapter 22: Remedies Following Constitutional Adjudication 313
  34. Chapter 23: Procedural Reactions to the Judicial Review Phenomenon 327
  35. Chapter 24: Managing the Political Risk of Judicial Review: Strategic Judging within the HKSAR 349
  36. Part 5: The Central-SAR Relationship
  37. Chapter 25: Introduction 355
  38. Chapter 26: Article 19 of the Basic Law of the HKSAR 359
  39. Chapter 27: Article 158 of the Basic Law of the HKSAR 371
  40. Chapter 28: Article 18 of the Basic Law of the HKSAR 443
  41. Chapter 29: Articles 20, 21, 22, 48(8) and 131 of the Basic Law of the HKSAR 445
  42. Chapter 30: Article 159 of the Basic Law of the HKSAR 447
  43. Chapter 31: ‘Second-best’ Constitutionalism 459
  44. Part 6: Reconstructing the Judicial or Judicial Reconstruction
  45. Chapter 32: The Challenge of the ‘Second Founding’ 465
  46. Bibliography 509
  47. Appendix: Excerpts of the Basic Law of the HKSAR 551
  48. Index 559
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