Rethinking the constitutional jurisdiction of Hong Kong courts over acts of the national people’s congress in light of the auto-limitation theory

Abstract

This article argues that if the auto-limitation theory is applied to explicate the Court of Final Appeal’s justifications in Ng Ka Ling for constitutional jurisdiction over acts of the National People’s Congress, the re-interpretation might justify Hong Kong courts reviewing acts of the NPC in a potential future case concerning matters falling within the ambit of the autonomy of Hong Kong, and, at the same time, greatly diminish the concerns that the CFA might have wrongly elevated the status of the Basic Law to the same level as the People’s Republic of China Constitution or placed itself above the NPC. Such a constitutional jurisdiction can be understood to have derived from the acceptance of the self-imposed limitation of the NPC as the Sovereign through the enactment of the Basic Law which guarantees a “high degree of autonomy”.