Executive and legislative reactions to judicial declarations of constitutional invalidity in Hong Kong: Engagement, acceptance or avoidance?

摘要

Since 1997, Hong Kong has had its own "mini-constitution" in the form of the Basic Law. To date, there has been little scrutiny of the relationship between the courts and the legislature and executive in terms of the court's impact on the subsequent actions of the latter two arms of government. It is unclear how the other branches of government have responded to judicial review proceedings, or what this tells us about the relative involvement of the three institutions in the evolution of constitutional meaning. This article looks at the interaction between the different institutions following judicial review proceedings relating to particular legislation. The article considers cases where courts issued a finding of constitutional invalidity of legislation or policy and what the legislature and administration did to rectify it. This paper considers what these responses say about the relationship between the different institutions. In evaluating these cases, we will consider, inter alia, the pathways signposted in the judgments for the better enforcement of constitutional norms by the executive and legislature as well as the actions of the executive and legislature in any subsequent law-making process.