Administrative Law as a Modest Guardian of the Rule of Law

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 the national security legislation. This paper identifies the ways in which the courts are likely to be engaged, including reviewing the constitutionality of the national security provisions and the enforcement acts. The discussion highlights how the court’s administrative review of the executive’s actions is likely to be the most effective site for a common law influence in the realm of national security. The avoidance of constitutional adjudication will be necessary for the courts to preserve their role in the arena of national security. This paper therefore suggests relocating the court’s role into the realm of administrative law.