Suchergebnisse

This article studies how the Hong Kong Court of Final Appeal has come to develop a sophisticated judicial gloss on the provisions of the Basic Law, Hong Kong's constitutional document, in ways unforeseen by the Chinese National People's Congress that enacted it. The ascendancy of constitutional common law in Hong Kong after the end of British rule is remarkable when considered in light of the continuing denial of democratic self-rule by China's authoritarian Party-state. This article argues that the profusion of political transaction costs due to the fragmentation of the ruling elite and state-society discord consequent to the resumption of Chinese sovereignty has created the requisite space for the Court to craft, with impunity, consequential yet politically realistic doctrines bearing on such weighty matters as constitutional interpretation, central-local relations, separation of powers, and rights protection.

Popular constitutionalism rarely arises in authoritarian polities. In the absence of genuine elections and referenda, aggrieved and disenfranchised citizens are more likely to resort to extraconstitutional action to defend themselves, to which the regime may respond with decisive suppression. Systemic popular constitutionalism did emerge inHongKong, currently underChinese sovereignty, however. Through coordinated mass resistance based on shared constitutional understandings, large numbers of residents have succeeded in restraining the appointedHongKong chief executive from deploying his full range of powers, obligedChina to make concessions on electoral reform it would not have made otherwise, and enabled the Basic Law, an imposed constitution, to remain relevant. This article specifies three preconditions under which the residents ofHongKong have, in the teeth of authoritarianism, managed to adjudge the constitutionality of the acts of the ruling elite with their feet. These preconditions, nevertheless, are idiosyncratic, and may not endure the recent mounting tensions betweenHongKong andChina [Correction added on 5 June 2014, after first online publication: the phrase "to authoritarian politic" has been removed from the last statement in the abstract.].

English administrative law guards judicial supremacy over all matters of statutory interpretation, while instructing judges to refrain from scrutinizing administrators' factual findings. By contrast, American federal courts are obliged to respect agencies' statutory-interpretive autonomy, but take a rigorous "hard look" at substantial agency factual determinations. This Article argues that the antithetical approaches to judicial review of administrative action adopted by the apex courts of the United Kingdom and the United States can be adequately explained by the polarization of these two polities along a spectrum of effective vetogates. ; published_or_final_version