香港特区法院的违基审查权兼与董立坤、张淑钿二位教授商榷

特区立法机关应根据基本法制定法律,特区法院审查特区立法机关制定的法律是否违反基本法的权力被称为"违基审查权"。香港的普通法传统为特区法院的违基审查权提供了法理依据,特区的新法治秩序激活了普通法中法院的司法审查权,而全国人大常委会审查权的不完整性使特区法院的违基审查成为必要。司法实践表明,特区法院的违基审查权无法挑战全国人大常委会的审查权,对基本法的实施总体上是有利的;损害特区行政主导体制的主要因素并非是法院的违基审查,而是立法会的强势地位。作为植根于普通法传统、已有十多年运行实践的权力,特区法院的违基审查权无须再通过全国人大常委会释法确认。当然,基于其在特区法治秩序中的地位,特区法院违基审查权应受到特区外部与内部两方面的制约。

Power of HKSAR Courts to Review Legislation for Conformity with the Basic Law

The Basic Law of Hong Kong Special Administrative Region(HKSAR) enjoys a higher status than the legislation by the Legislative Council of HKSAR.The power of the courts in HKSAR to review whether the legislation by the Legislative Council conforms to the Basic Law is called the "Power to Review Legislation for Conformity with the Basic Law".The common law tradition in Hong Kong provides the legal basis for this power,and the new legal order in HKSAR activates the judicial review power of the courts.Moreover,the incompleteness of the review by the Standing Committee of the National People’s Congress(SCNPC) makes it necessary for the courts in HKSAR to review the legislation for conformity with the Basic Law. The practice of HKSAR courts shows that the power to review legislation for conformity with the Basic Law does not challenge the authority of SCNPC.It is generally helpful for the implementation of the Basic Law.It is not the courts’ reviewing practice that harms the executive-dominated political structure,but the strong position of the Legislative Council.The viewpoint that the reviewing practice distorts the relationship between the Basic Law and common law is based on a misunderstanding of their relationship.As a power founded on the tradition of common law that has been practiced for more than ten years,it is not necessary for the SCNPC to recognize it by interpreting the Basic Law.Of course,due to their status in the legal order of HKSAR,the courts’ power to review legislation for conformity with the Basic Law shall be subject to both external and internal constraints from outside and inside the HKSAR.