Exploring the Political Question Doctrines in Hong Kong
(2017) 29 SAcLJ 690
In Hong Kong, instead of a political question doctrine, the courts arguably enforce three political question doctrines. First, the Hong Kong courts do not have jurisdiction to review matters that are expressly or implicitly committed to the Central People’s Government in Beijing exclusively. Second, the Hong Kong courts observe the principle of
non-intervention in the internal process of the Legislature. Where this principle applies, the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of the Legislative Council, but the courts “will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities” by the Legislature. Finally, with regard to statutory restrictions on the electoral process and voting rights, the Judiciary will accord a margin of appreciation to the Legislature when assessing the constitutionality of these limitations as these issues implicate “political and policy considerations” that judges are ill-equipped to resolve. In essence, the Hong Kong judiciary have tiered the standard of review on political questions. Cases in the first category are non-justiciable. Those in the second are justiciable only to the extent that courts would only determine whether the Legislature has the requisite non-reviewable powers in the first place. And, in the third category, the disputes are non justiciable in the “secondary” sense, that is, the Judiciary would decrease its standard of review when resolving these disputes. In itself, each strand of the three political doctrines in Hong Kong is conceptually defensible. But their applications have been fraught with inconsistencies and the purpose of this paper is to illuminate this political thicket.