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Article: Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation
Title | Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation |
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Authors | |
Keywords | Separation of Powers Basic law |
Issue Date | 2019 |
Publisher | Sweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/ |
Citation | Hong Kong Law Journal, 2019, v. 49 n. 1, p. 187-208 How to Cite? |
Abstract | Separation of powers is not an area where courts in a number of common law jurisdictions have displayed a great deal of consistency, and the Hong Kong judiciary proved no exception during the early decades of the Special Administrative Region. Faced with a doctrine enshrined in the Basic Law, which they had virtually no prior experience of interpreting during Hong Kong’s colonial era, the courts resorted to a simplistic and formalist approach during some early cases, drawing on rigid overseas precedents to enforce the prophylactic barriers between executive, legislature and judiciary so beloved by separation of powers purists. But influenced by the writings of Sir Anthony Mason, the courts began inching towards a more flexible interpretation of separation of powers during the second decade of the Special Administrative Region. Yet this quasi-functionalist approach remains a work very much in progress, with the courts preferring to blur the boundaries between the three branches rather than embrace the full breadth of the separation of powers doctrine by directly acknowledging that the work of the executive, legislature and even judiciary must sometimes overlap. |
Description | Symposium: 20 Years of the Basic Law |
Persistent Identifier | http://hdl.handle.net/10722/282931 |
ISSN | 2023 Impact Factor: 0.3 2020 SCImago Journal Rankings: 0.112 |
SSRN |
DC Field | Value | Language |
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dc.contributor.author | Gittings, D | - |
dc.date.accessioned | 2020-06-05T06:23:11Z | - |
dc.date.available | 2020-06-05T06:23:11Z | - |
dc.date.issued | 2019 | - |
dc.identifier.citation | Hong Kong Law Journal, 2019, v. 49 n. 1, p. 187-208 | - |
dc.identifier.issn | 0378-0600 | - |
dc.identifier.uri | http://hdl.handle.net/10722/282931 | - |
dc.description | Symposium: 20 Years of the Basic Law | - |
dc.description.abstract | Separation of powers is not an area where courts in a number of common law jurisdictions have displayed a great deal of consistency, and the Hong Kong judiciary proved no exception during the early decades of the Special Administrative Region. Faced with a doctrine enshrined in the Basic Law, which they had virtually no prior experience of interpreting during Hong Kong’s colonial era, the courts resorted to a simplistic and formalist approach during some early cases, drawing on rigid overseas precedents to enforce the prophylactic barriers between executive, legislature and judiciary so beloved by separation of powers purists. But influenced by the writings of Sir Anthony Mason, the courts began inching towards a more flexible interpretation of separation of powers during the second decade of the Special Administrative Region. Yet this quasi-functionalist approach remains a work very much in progress, with the courts preferring to blur the boundaries between the three branches rather than embrace the full breadth of the separation of powers doctrine by directly acknowledging that the work of the executive, legislature and even judiciary must sometimes overlap. | - |
dc.language | eng | - |
dc.publisher | Sweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/ | - |
dc.relation.ispartof | Hong Kong Law Journal | - |
dc.subject | Separation of Powers | - |
dc.subject | Basic law | - |
dc.title | Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation | - |
dc.type | Article | - |
dc.identifier.doi | 10.2139/ssrn.4171917 | - |
dc.identifier.hkuros | 310175 | - |
dc.identifier.volume | 49 | - |
dc.identifier.issue | 1 | - |
dc.identifier.spage | 187 | - |
dc.identifier.epage | 208 | - |
dc.publisher.place | Hong Kong | - |
dc.identifier.ssrn | 4171917 | - |
dc.identifier.hkulrp | 2022/44 | - |
dc.identifier.issnl | 0378-0600 | - |