Research On Judicial Review In Hong Kong

Judicial review is an important aspect in the judicial system of Hong Kong. This thesis analyzes the judicial review in Hong Kong before and after its returning to China and makes theoretical analyses and explorations on the judicial review in Hong Kong Special Administrative Region.At present Hong Kong does not have written regulations on judicial review system. The common law tradition which the courts exercise the power of judicial review in specific cases plays its role in Hong Kong. So this thesis quotes some cases on judicial review which happened after the return of Hong Kong and makes theoretical analyses and explorations on some problems involved in the judgments made by the courts of HKSAR in detail. Through the analyses, the author points out that some judgments made by the courts of HKSAR in judicial review have some negative factors to the national sovereignty of China and the relations between the central of China and HKSAR. The author also proposes his viewpoint. Through the analyses on these problems, the author wants to make the courts of HKSAR notice that HKSAR is a local administrative region of China and that although the Basic Law regulates that HKSAR enjoys a high degree of autonomy, independent judicial power and the power of final adjudication, the Basic Law also regulates the principle of "one country", so HKSAR should observe the principle of "one country". "One country" is the premise of "two systems" and "high degree of autonomy". The courts of HKSAR should understand the Basic Law correctly, observe the Basic Law strictly and observe the law and decisions which are made by the Standing Committee of the NPC and are applicable in HKSAR. The courts of HKSAR should realize that they have no power to review the actions of national sovereignty, otherwise they will be contemptuous of the national sovereignty. This thesis includes analyses on how to make the exercise of the power of judicial review better and on the problems the courts of HKSAR should notice.This thesis falls into three chapters. Chapter one analyzes judicial review in Hong Kong before its returning to China, including the theoretical foundation, legal basis and contents of judicial review in Hong Kong. This chapter analyzes the differences between judicial review in Britain and that in Hong Kong. Chapter two analyzes judicial review in Hong Kong after its returning to China, including the detailed analyses on the Basic Law of Hong Kong Special Administrative Region being the fundamental legal basis of judicial review in HKSAR. This chapter makes comparison between judicial review in Hong Kong before its returning to China and that in HKSAR and the comparison between judicial review in HKSAR and that in the Mainland of China. In this chapter, the author quotes some typical cases to show the practice of judicial review in HKSAR and makes detailed analyses on the legal problems in the cases. Also in this chapter, the author analyzes the interpretation of the Basic Law by the Standing Committee of the NPC from the view of one case and the relation between the interpretation of the Basic Law by the Standing Committee of the NPC and the judicial review in HKSAR. Chapter three is the theoretical analyses and explorations on the judicial review in HKSAR. In this chapter, the author analyzes the following questions: whether the Constitution of China is the legal basis of judicial review in HKSAR or not; the role of the Constitution of China in judicial review in HKSAR; can the courts of HKSAR review the laws made by the NPC and its Standing Committee to judge whether the laws breach the Basic Law or not; do the courts of HKSAR have the power of reviewing the laws made by the legislature of HKSAR; the power of interpreting the Basic Law by the courts of HKSAR and the judicial review in HKSAR; the restrictions on the judicial review in HKSAR. The last part of the thesis is the conclusion. In this part, the author summarizes the problems in the judicial review in HKSAR and the causes of them. Also in this part the author gives his suggestions.