This paper considers the role of HK courts and common law administrative law principles in combating encroachments on HK‘s rule of law from national security laws. The courts have two main roles. 1) Entrenching a position for themselves in the interpretation of Article 23. 2) Checking and balancing against the executive‘s enforcement and implementation of...
Against Interpretation as an Alternative to Invalidation
This paper’s object is to sound a note of caution against the rise of remedial interpretation (ie a court rewriting a statute to render it compatible with a constitutional norm) as an alternative to statutory invalidation as a remedy for violations of constitutional norms in Anglo-American countries (eg s 3 of the UK Human Rights...
ASEAN and a Janus-faced constitutionalism: the Indonesian case
This paper addresses the interaction between two ASEAN norms and Indonesia‘s dual constitutionalism, particularly in the energy sector. The ASEAN norms are increasing foreign investment and private sector involvement. Indonesia‘s dual system comprises two spheres of legislative action. In the first, the House of Representatives legislates subject to judicial oversight. In the second, the President...
Beyond Juristocracy and Legislative Authoritarianism: On the criteria governing the legitimate institutionalization of the relationship between courts and legislatures
The idea of Socratic contestation provides not only a basic account of the point of judicial review but also guides its appropriate institutionalization. The distinction between “strong“ and “weak“ judicial review is undercomplex. Instead a wider range of variables needs to be considered. This piece discusses what these variables are, how they matter and what...
Brexit, Migration and Politics of Fear
On face value, the EU referendum concerned whether the UK chose to remain within or chose to leave the EU. Despite the choice to leave the EU, a major political fault line emerged between the ‘remainers‘ and the ‘leavers‘ that continues to dominate political life in the UK. The campaigns conducted by the two camps...
Brexit: Constitutional identity as an obstacle to multilevel governance?
The UK‘s planned exit from the EU is a constitutionally momentous decision. Significant constitutional questions regarding the causes and consequences can be raised. One important aspect is the constant undercurrent of British constitutional dissatisfaction with supranational multilevel governance. Key questions are the following: First, why has EU multilevel governance been perceived as a threat to...
Brexit: Paradoxes of Community and Sovereignty
This paper will consider the process and substance of Brexit against the backdrop of federalism, broadly conceived in terms of power division and sharing between different levels of government. It will consider the strains placed on the Community project by Brexit, and the strains that have also been placed on conceptions of UK sovereignty by...
Can we escape Normativism in Public Law?
Public Law (as any other field of law) tries to achieve certain goals by certain orders (norms). Norms, thus, have an important role to play in regulating und limiting state activities especially in democratic states with a rule of law. Obligations arising from these norms are expressed in fundamental rights as well as in the...
Canon construction and global constitutionalism: The normative challenge
This presentation explores the normative challenges of constructing a canon of comparative constitutional and human rights law and the relationship of that project to the broader theme of global constitutionalism.