The Logical Foundations of Judicial Review of Legislation in the Hong Kong Special Administrative Region

Abstract

This Analysis demonstrates in the simplest manner that the Basic Law of the Hong Kong Special Administrative Region could not have authorised the courts it established to enforce non-applicable laws that violate itself. This lack of judicial authority to enforce laws inconsistent with the Basic Law cannot in itself be curtailed, even by a Standing Committee Interpretation without contradiction. Nor can the courts' obligation to ascertain the consistency of primary and subsidiary legislation with the Basic Law be prohibited by such an Interpretation without reducing the Basic Law into a non-justiciable paper tiger. Judicial enforcement of the Basic Law does not imperil Chinese sovereignty; if anything, it enhances the reputation and credibility of the Basic Law, the centre-piece of 'One Country, Two Systems'.