Thomas Yeon and Trevor Wan on Interpreting Provisions Ousting the Courts’ Supervisory Jurisdiction over Election Candidacy Decisions (HKLJ)

"Interpreting Provisions Ousting the Courts’ Supervisory Jurisdiction over Election Candidacy Decisions"
Thomas Yeon (PCLL (HKU)) and Trevor T. W. Wan  (LLB (Government and Laws (HKU) )
Hong Kong Law Journal, 

2021, Vol. 51, Part 3 of 2021, pp. 829-844

Abstract: Following the National People’s Congress’s decision to overhaul Hong Kong’s electoral system in March 2021, its Standing Committee resolved to amend Annexes I and II of the Basic Law, providing for the establishment of a Candidate Eligibility Review Committee for elections of the Chief Executive, members of the committee responsible for electing the Chief Executive, and members of the Legislative Council. The amendment also added an ouster clause, replicated statutorily in the Legislative Council Ordinance (Cap 542) and Chief Executive Election Ordinance (Cap 569), to the effect that “no legal proceedings may be instituted in respect of a decision” made by the Candidate Eligibility Review Committee. This article seeks to illustrate the constitutional–statutory hybrid character of the ouster clause and the interpretive principles applicable towards it. It also responds to two objections against qualifying the ouster clause’s effect based on the clause’s constitutional character and its relationship with the National Security Law.