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Article: A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State
Title | A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State |
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Authors | |
Keywords | constitutional common law interpretation of the Basic Law judicial independence in authoritarian regime One Country Standing Committee of the National People's Congress Two Systems |
Issue Date | 2019 |
Publisher | Oxford University Press. The Journal's web site is located at http://www.oup.co.uk/law/yearbooks/yearbook-legalprob |
Citation | Current Legal Problems, 2019, v. 72 n. 1, p. 85-122 How to Cite? |
Abstract | Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state. |
Persistent Identifier | http://hdl.handle.net/10722/280100 |
ISSN | 2023 Impact Factor: 1.4 2023 SCImago Journal Rankings: 0.447 |
SSRN | |
ISI Accession Number ID |
DC Field | Value | Language |
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dc.contributor.author | Chan, JMM | - |
dc.date.accessioned | 2020-01-06T02:00:57Z | - |
dc.date.available | 2020-01-06T02:00:57Z | - |
dc.date.issued | 2019 | - |
dc.identifier.citation | Current Legal Problems, 2019, v. 72 n. 1, p. 85-122 | - |
dc.identifier.issn | 0070-1998 | - |
dc.identifier.uri | http://hdl.handle.net/10722/280100 | - |
dc.description.abstract | Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state. | - |
dc.language | eng | - |
dc.publisher | Oxford University Press. The Journal's web site is located at http://www.oup.co.uk/law/yearbooks/yearbook-legalprob | - |
dc.relation.ispartof | Current Legal Problems | - |
dc.rights | Pre-print: Journal Title] ©: [year] [owner as specified on the article] Published by Oxford University Press [on behalf of xxxxxx]. All rights reserved. Pre-print (Once an article is published, preprint notice should be amended to): This is an electronic version of an article published in [include the complete citation information for the final version of the Article as published in the print edition of the Journal.] Post-print: This is a pre-copy-editing, author-produced PDF of an article accepted for publication in [insert journal title] following peer review. The definitive publisher-authenticated version [insert complete citation information here] is available online at: xxxxxxx [insert URL that the author will receive upon publication here]. | - |
dc.subject | constitutional common law | - |
dc.subject | interpretation of the Basic Law | - |
dc.subject | judicial independence in authoritarian regime | - |
dc.subject | One Country | - |
dc.subject | Standing Committee of the National People's Congress | - |
dc.subject | Two Systems | - |
dc.title | A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State | - |
dc.type | Article | - |
dc.identifier.email | Chan, JMM: johannes@hkucc.hku.hk | - |
dc.identifier.authority | Chan, JMM=rp01292 | - |
dc.description.nature | link_to_subscribed_fulltext | - |
dc.identifier.doi | 10.1093/clp/cuz004 | - |
dc.identifier.scopus | eid_2-s2.0-85083746055 | - |
dc.identifier.hkuros | 308874 | - |
dc.identifier.volume | 72 | - |
dc.identifier.issue | 1 | - |
dc.identifier.spage | 85 | - |
dc.identifier.epage | 122 | - |
dc.identifier.isi | WOS:000508124000004 | - |
dc.publisher.place | United Kingdom | - |
dc.identifier.ssrn | 3461515 | - |
dc.identifier.issnl | 0070-1998 | - |