Analysis ; This article argues that some of the existing procedural requirements in traditional judicial review proceedings will have to be modified in light of the increasing number of challenges against constitutionality of legislation. It also argues for a more flexible approach to the granting of declaratory relief and damages in judicial review, and while it advocates in favour of a power to grant a stay of a declaration of unconstitutionality of legislation, it queries whether such an approach has been adopted in practice. ; published_or_final_version
Abstract no. 12 ; With the introduction of the Bill of Rights in 1991 and the Basic Law in 1997, the demarcation between constitutional law and traditional judicial review in administrative law has become increasingly blurred. In one sense, a challenge against an administrative decision for being contrary to the Basic Law is nothing more than an application of the doctrine of ultra vires under traditional judicial review. Yet the possibility of challenging the vires of the enabling legislation has considerably widened the scope of judicial review, as an administrative decision can be challenged, not just by attacking the decision itself, but also by attacking the vires of the source of powers. This possibility presents new challenges to the judiciary in granting remedies, as the consequences and implications could be much far-reaching. At the same time, the trend of combining constitutional challenges in traditional judicial review applications raises the question how far the existing procedure for judicial review is adequate to meet this new challenge. This paper examines how the Hong Kong courts have risen to these challenges. ; published_or_final_version ; Joint Symposium of three law schools of the Hong Kong University, the National University of Singapore, and the Singapore Management University (HKU-NUS-SMU Symposium), Singapore, 1-2 December 2008.
The author argues that by and large, fundamental rights have been upheld in the last decade. The promise of a high degree of autonomy has largely been kept as the Central Government has exercised great restraint in not interfering with the domestic affairs of Hong Kong, save in the area of democratic development. Nonetheless, many cases with political overtones are increasingly brought before the Courts. If this trend continues and if the judiciary is unable to meet the expectations of the people, the rule of law in Hong Kong will be undermined. ; published_or_final_version
Section 13 of the Immigration Ordinance provides that the Director of Immigration may authorise any person who landed in Hong Kong unlawfully to remain in Hong Kong. In Lai Yau Chik v Director of Immigration, the Court of First Instance recently held that this power could only be exercised by the Director of Immigration personally. The court appears to have taken the view that the legislature intended to exclude the general principle of delegation in this context. On its terms, this decision has far-reaching consequences for a large number of Hong Kong citizens whose permission to remain in Hong Kong was granted by lesser Immigration Department officials. The author critically assesses this decision in light of the statutory scheme, and the principles of devolution and delegation of statutory powers. ; published_or_final_version
Analysis ; As a result of financial pressure, many Hong Kong Government departments have in recent years made an administrative decision to levy charges for some of their services. In so doing, the time-honoured constitutional principle that there is no power to levy charges in the absence of clear legislative authority may well have been overlooked. The author warns that in the absence of express or implied statutory power, such levies will be ultra vires. ; published_or_final_version
ONE OF THE MOST IMPORTANT ISSUES CONCERNING ARISTOTLE'S POLITICAL THEORY IS WHETHER HIS NATURALISTIC APPROACH TO POLITICS IS CONSISTENT WITH HIS GENERAL POLITICAL THEORY. THE QUESTION HAS ARISEN: HOW CAN IT BE POSSIBLE THAT A POLIS IS BOTH A NATURAL THING AND A RESULT OF HUMAN CONSCIOUS CONSTRUCTION? THIS ARTICLE ATTEMPTS TO PROVIDE A COHERENT AND THEORETICALLY PLAUSIBLE INTERPRETATION OF ARISTOTLE'S THEORY OF THE NATURALNESS OF THE POLIS. IT ALSO ATTEMPTS TO TO OFFER AN INTERPRETATION THAT IS NOT SO WEAK THAT IT WOULD DEGENERATE INTO THE 'NATURAL TO MAN' VERSION, BUT IS NOT SO STRONG THAT IT WOULD EXCLUDE ANY NOTION OF HUMAN INVOVEMENT IN THE EXISTENCE AND MAINTENANCE OF THE POLIS. AFTER HIS EXAMINATION, THE AUTHOR CONCLUDES THAT THE THEORY IS NOT THE BLUNDERED DOCTRINE ITS CRITICS SUPPOSE IT TO BE.
The importance of developing students' ability to argue effectively is generally recognised across the curriculum, however what this means within religious education has not been thoroughly investigated. We explore this issue first through an initial review of both wider philosophical and curriculum literature on argumentation, notably Toulmin's work, and then a review of relevant research within religious education. We then describe our curriculum analysis, addressing three research questions focusing on the frequency, purpose and conceptualisation of argumentation, though a mixed-methods curriculum analysis of locally agreed syllabuses across England (LASs). A quantitative analysis of frequency in thirty-five LASs showed that although argumentation was never mentioned, other cognates were always present. A detailed qualitative analysis of six LASs showed that its purpose was linked to personal expression within democratic participation, and epistemic and empathetic flexibility. Using Toulmin's model of argumentation as a frame, it is generally conceptualised around the elements of claim, evidence and rebuttal, but the precise nature of evidence, warrant and backing are not explicit, especially as the field-dependent elements are unspecified. The implications of these findings for both general conceptualisations of argumentation and curriculum development within religious education are outlined.
