EXPLORING THE POLITICAL QUESTION DOCTRINES IN HONG KONG
| Date | 01 December 2017 |
| Citation | (2017) 29 SAcLJ 690 |
| Author | YAP Po Jen LLB (National University of Singapore), LLM (Harvard), LLM (London), PhD (Cantab); Associate Professor, The University of Hong Kong. |
| Published date | 01 December 2017 |
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.
1 In the first constitutional decision handed down by the Hong Kong Court of Final Appeal (“CFA”), the unanimous court in Ng KaLing v Director of Immigration1 (“Ng Ka Ling”) – in a memorable paragraph that echoed Marbury v Madison2 – emphatically asserted its power to engage in constitutional review, even after the People's Republic of China (“PRC”)'s resumption of sovereignty over the city:3
[The Hong Kong courts] undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law or executive act is invalid at least to the extent of the inconsistency …
2 But this ambitious expression that the court's power to invalidate legislation is “a matter of obligation, not of discretion”4 cannot be read at face value, as the Hong Kong judiciary has regularly accepted that the institutional design of the Basic Law5 – the operative constitutional instrument governing Hong Kong post-handover – does not require the courts to be the final arbiter of every constitutional provision.
3 Instead, the non-justiciability doctrine – also labelled as the political question doctrine in the US – postulates that certain issues in constitutional law are inappropriate for judicial resolution and, in those circumstances, the judgment of the political branches should prevail over the judicial one.6
4 The political question doctrine is generally defended on two normative grounds. First, the Judiciary is not constitutionally authorised to resolve disputes for which the subject matter has been expressly or implicitly committed exclusively to another branch of government for “self-monitoring”.7 The underlying assumption herein is that the political branches of government possess certain institutional characteristics or have special expertise in particular areas that warrant judicial non-interference. Second, judicial abdication is justified on prudential grounds. To maintain its legitimacy, the courts must pick their fight; and the best way to accomplish this is to avoid
political controversies that do not “lend themselves to principled judicial resolution”.85 This political question doctrine has been implemented by common law courts in different forms. In the US, the modern restatement of the political question doctrine was laid out by William Brennan J in Baker v Carr:9
[1] Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non judicial [sic] discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
But one should note that in the recent US Supreme Court decision of Zivotofsky v Clinton,10 the US Chief Justice John Roberts (on behalf of the majority) only recognised the first two criteria and the other four factors were completely ignored.11
6 In contrast, in the UK, its Supreme Court in Shergill v Khaira12 (“Shergill”) has recognised two categories of non-justiciability. The first category comprises cases where the issue in question is “beyond the constitutional competence assigned to the courts under our conception of the separation of powers”13 and they include “certain transactions of foreign states and … proceedings in Parliament”.14 The second category comprises claims or defences which are based neither on private legal rights/obligations nor reviewable matters of public law.15 In the latter category, the cases are only presumptively non-justiciable as the cases must, nevertheless, be resolved if “their resolution is necessary in order to decide some other issue which is in itself justiciable”.16 On the facts in
Shergill, there was a dispute between two factions of the Sikh community concerning the trusteeship of two Sikh temples, and the UK Supreme Court held that while matters of religious doctrine were prima facie non-justiciable, the Judiciary could adjudicate these issues if this was necessary to interpret a trust deed.7 Interestingly, in Hong Kong, instead of a political question doctrine, we arguably have 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.17 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 (“LegCo”), but the courts “will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities”18 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”19 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 – as Bruce Harris terms it – non-justiciable in the “secondary”20 sense, that is, the Judiciary would decrease its standard of review when resolving these disputes.21 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.
8 Hong Kong courts do not have jurisdiction to review matters that are expressly or implicitly committed exclusively to the Central People's Government in Beijing.
9 For example, the Basic Law provides that the Central People's Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region (“HKSAR”).22 It also states that the Central People's Government shall be responsible for Hong Kong's defence.23
10 Article 19(3) of the Basic Law further inserts an express ouster clause: “[t]he courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs”.
11 Unfortunately, the term “acts of state” is not defined in the Basic Law and this has been the subject of a major litigation in Hong Kong. FG Hemisphere – the assignee of the benefit of debts owed by the Democratic Republic of the Congo in consequence of two International Chamber of Commerce arbitration awards made against it – had sought to enforce these arbitral awards against money said to be payable in Hong Kong to the Congo by China Railway. The Congo and China Railway had sought to resist enforcement on the basis that the Congo, as a sovereign state, enjoyed immunity in Hong Kong. The central issue before CFA in Democratic Republic of the Congo v FG Hemisphere24 (“FG Hemisphere”) was whether state immunity was an act of state such that the Hong Kong courts had no...
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