Friday, March 17, 2023

Johannes Chan on Taking Rights Seriously — the Judiciary at a Challenging Time (HKLJ)

Johannes Chan
in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp. 937-964
Abstract: While the judiciary is generally regarded as the defender of the rule of law and fundamental rights, it is not uncommon that judges could also suppress democratic values. Courts around the world have legitimised undemocratic or even repressive law and practices. Authoritarian regimes tend to capture the judiciary, not only because the judiciary would provide the legitimacy for anti-democratic measures, but the nature of the institution could also masquerade such measures as a legitimate exercise of power that makes it more difficult to detect and respond to. This article examines the relationship between the Central Government and the judiciary of the Hong Kong Special Administrative Region (HKSAR). It focuses on the judicial responses when the Central Government decided to shift the emphasis from “Two Systems” to “One Country” under the constitutional design of the HKSAR and to exercise “full jurisdiction” over Hong Kong. By focusing on the reasoning and the context of the relevant cases, it argues that the responses of the judiciary amount to a weak form of “abusive judicial review”. The constitutional model of “One Country, Two Systems” implies mutual accommodation of the two systems, and convergence means reconciliation of the two systems rather than changing one system to conform with the other system. While there are incidents suggesting a strong form of “abusive judicial review”, it is argued that it is too early to draw this conclusion. The article also cautions that when the pendulum has swung from one extreme to the other, it is even more important for the judiciary to make full use of the tapestry of common law principles to strike a better balance between fundamental rights and protection of national security.

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