Thursday, December 18, 2014

New Book Chapter on Common Law Courts in China

"Hong Kong: Common Law Courts in China" (pp 183-227) in
Asian Courts in Context
Edited by Jiunn-rong Yeh and Wen-Chen Chang
Cambridge University Press, December 2014
Dr. P.Y. Lo
Abstract: Asian Courts in Context, edited by Professors Yeh Jiunn-rong and Chang Wen-chen of National Taiwan University, seeks to provide the most up-to-date and comprehensive studies of courts in a number of countries in Asia to show how they may differ from courts in the West and how they have been shaped by the current economic and political challenges facing Asia. This chapter on the HKSAR courts follow a format prescribed by the editors to facilitate the discussion of the following topics: judicial system (including the source of judicial power, the structure and organization of the courts and the size and performance of the courts), sources and influences of the establishment of the judicial system, judicial appointments, judicial independence and access to justice, sources of law and styles of judicial decisions, and alternative dispute resolution and the courts. This chapter concludes with an up-to-date analysis of the challenges facing the courts of the HKSAR, including those coming from the generational transition in the judicial corps and the assertion of the “one country” narrative in the understanding of the underlying “one country, two systems” principle of the Basic Law of the HKSAR, as to which the courts of the HKSAR have been granted the power to interpret, at least in relation to those provisions that are within the limits of Hong Kong’s autonomy. Pointing to Article 158 of the Basic Law, which deals with interpretation of the Basic Law, it is suggested in the end of the chapter that features of the HKSAR judicial system contributing to its strengths are likely to be the sources of its weaknesses. “The separation of the power of final adjudication from the power of final interpretation of the constitutional instrument makes the judicial autonomy of the courts of the HKSAR vulnerable, as this plenary power of the NPCSC has been exercised to deprive a judgment of the Court of Final Appeal precedential value. As Sir Anthony Mason pithily noted, the Rule of Law of Hong Kong, like its courts, lies in the shadow of a Giant.”  Dr. P.Y. Lo completed work on this chapter while serving as a Visiting Fellow of the Centre for Comparative and Public Law.

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