10 years of the basic law: the rise, retreat and resurgence of judicial power in Hong Kong

Abstract

Since the National People's Congress Standing Committee's (NPCSC) reversal of the Court of Final Appeal's abrasive decision of Ng Ka Ling, the court has become cognizant of the repercussions of its decisions and has now adopted a pragmatic view toward its adjudicatory role. Where decisions implicate the validity of Mainland Chinese laws or NPCSC decisions, the court would always defer to the central government. Notwithstanding the court's recognition of the supremacy of the NPCSC, the court has remained very diligent in preserving its prerogative as the primary interpreter of the Basic Law. Where disputes concern alleged human rights violations that have no People's Republic of China (PRC) implications but have law and order implications in Hong Kong, the courts are generally conservative so as to afford the legislature or the executive much latitude in maintaining peace and stability. With regard to disputes with neither NPCSC nor domestic law and order implications, the court is confident that any political backlash against an adverse decision would be minimal; in these instances, the court is therefore more conscious of avoiding the austerity of tabulated legalism and is enthused about providing a generous interpretation of the Basic Law.