Levitating Unconstitutional Law

Abstract

The Court of Final Appeal postponed the operation of declarations of unconstitutionality in the recent judicial review against the statutory power and the claimed legitimate basis of the HKSAR Government for conducting interception of telecommunications and covert surveillance, to give a specified period of time for the enactment of “corrective legislation.” This analysis examines the Court’s judgment and considers, by reference to the nature of declaratory orders, that the claimed inherent basis of the judicial power to suspend a declaration of unconstitutionality so as to postpone its operation to another date does not necessarily justify; and that for such an exceptional withholding of remedy to properly apply, truly exceptional circumstances must be shown.

Keywords: Hong Kong, Basic Law, Judicial power, Constitutional adjudication, Declaration of unconstitutionality, Suspension