Judicial review in Hong Kong
Judicial review in Hong Kong is conducted according to the Constitutional and Administrative Law List (Practice Direction 26.1).[1] It comprises two different aspects: firstly, a review of domestic legislation as to their compatibility with the Basic Law ("constitutional review"); and secondly, judicial review of administrative decisions under administrative law ("administrative review").
Constitutional review
Under the Basic Law, the court of Hong Kong is also delegated with the power to interpret the Basic Law. Thus, it is recognised by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law. Similar to the United States, Hong Kong courts have held that they may review as to whether legislation passed by the legislature is in compliance with the Basic Law. This is different from the situation in the UK where the court may have no such jurisdiction under the traditional doctrine of parliamentary supremacy. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.
Administrative review
The Basic Law provides that the previous law in force in Hong Kong, including Common Law, will be preserved. Thus, administrative review, as part of the Common Law, is also preserved. The basis of administrative review is commonly said to be Article 35 of the Basic Law, which reads:
Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.
Hong Kong's administrative law is highly similar to English administrative law, with a few minor differences. "Both systems are nearly the same with a few often neglected, but important differences.
References
- ↑ "PRACTICE DIRECTION – 26.1 THE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST". HKLII. 1 September 1998. Retrieved 4 May 2010.