Hong Kong's Court of Final Appeal: The Development of the Law in China's Hong Kong

Title: Hong Kong's Court of Final Appeal: The Development of the Law in China's Hong Kong Authors: Simon N M Young and Yash Ghai (eds) Publisher: Cambridge University Press Publication date: January 2014 Format: Hardback ISBN: 9781107011212 Length: 735 pagesJudiciary has always been a major actor in common law jurisdictions. Judges have not only developed the immense body of common law jurisprudence, but also reshaped and sometimes rewritten legislation in the exercise of their interpretive function. They have also played a major role in interpreting constitutional provisions to suit changing times and circumstances, although some would have the judiciary adopt a strict originalist approach.1Common law judges have always been guided by the idea of the Rule of Law as a counterweight against legislative supremacy and executive authority to uphold the autonomy and freedoms of the individual. Drawing inspiration from England and working within the Westminster model - later modified by Presidentialism especially represented by the USA - courts in common law jurisdictions had to administer common law in harmony with non-common law systems and indigenous laws. Common law judges approached these legal systems with a firm commitment to upholding the sanctity of individual freedom and keeping the government within its legitimate sphere while infusing common sense into law so much so that they leftthe indelible imprimatur of English law, with its unique cannons of interpretation, in the mixed jurisdictions. This common law influence prompted Hahlo and Kahn to observe that 'like a jewel in a brooch, the Roman-Dutch law in South Africa today glitters in a setting that was made in England'.2When the British administration occupied Hong Kong, it did not have to compete with any rival system of law or judicial tribunals, unlike Sri Lanka, India or South Africa. It was a barren land and Hong Kong's first ever institutionalised system of law and government was of the British colonial model. Until 1997, when Hong Kong ceased to be a British Crown colony, the judiciary - which was truly international - had succeeded in developing an impressive local jurisprudence well supported by excellent law schools and an equally excellent legal profession.The resumption of Hong Kong's sovereignty by the People's Republic of China in 1997 has introduced a new jurisdictional challenge, namely that Hong Kong is not an independent country but a Special Administrative Region of the PRC, albeit with a high degree of autonomy. The Basic Law of Hong Kong, while providing for the State-region relationship in respect of the exercise of legislative and administrative powers, has given the Hong Kong judiciary a virtually free hand in the administration of justice. The only limitation is that the constitutional jurisdiction of Hong Kong courts is not exclusive: The Standing Committee of the National People's Congress - a legislative and not a judicial organ of the PRC - has the general power to interpret the Basic Law while Hong Kong courts may interpret the provisions of the Basic Law 'which are within the limits of the autonomy of the region'. …