A ‘Guardian Controversy’ Over Hong Kong’s Basic Law?
Publication in refereed journal

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AbstractThe High Court's November 2019 overturning of the mask ban turned in part on finding that the Emergency Regulations Ordinance (Cap 241) improperly arrogated "general legislative authority" to the Chief Executive. In doing so, it raised questions that might be usefully compared with those of Weimar Germany's so-called Guardian controversy involving the legal theorists Carl Schmitt, Hans Kelsen and Hermann Heller. That dispute concerned both the scope of emergency powers and the final locus of constitutional review authority. In the mask ban case, only the former issue has been directly raised. However, any future interpretation issued by the Standing Committee of the National People's Congress (NPCSC) would indeed risk broader implications for the principle of separation of powers. The NPCSC's taking action to empower a greater legislative role for the Chief Executive would likely be criticised by each of these three leading late Weimar legal scholars, though for very different reasons.
All Author(s) ListMITCHELL Ryan James
Journal nameHong Kong Law Journal
Volume Number50
PublisherHong Kong Law Journal Ltd.
Place of PublicationHong Kong
Pages463 - 487
LanguagesEnglish-United Kingdom
KeywordsHong Kong Basic Law, Comparative Constitutional Law, German Public Law, Executive Power, Emergency

Last updated on 2021-29-11 at 00:10