Lecture notes

L5
- case law may be slow but holds importance as others don't know the law as well as
lawyers
- Home Office v Dorset Yacht Co Ltd->slide 23 case law reasoning has limitations

-law has to be logical

-case law reasoning: induction and deduction
induction-> specific to general; deduction other way round
-stare decisis

2018
what are the ways through national law of PRC can be made enforceable of the court
of HKSAR
-define enforceable-> can court interpret vs apply
-define court
-national law of PRC-> PRC Constitution or ordinary national law
NS3 art18
158 interpretation
basic law may also be national law
list cases

Avoid questions that have less points even if they are easy
need 4-6 good arguments to get good grade
if think it is easy-> C Grade-> it's easy coz you missed the point
don't stand out by picking a difficult q-> stand out by raising good points

critically discuss the role of the international foreign judgement and the modern
approach to statutory interpretation in maintaining the legal system and the rule
of law
-define international and foreign judgement-> common law, domestic vs international
modern approach to statutory interpretation-> limitations, how it has been
described by the court, what in practice vs in theory would the court do
-purposive-> not bad for rule of law as operate under limit of basic article
-flexible
-depends on how you define rule of law, thick way vs thin way-> generous or human
right; thin-> modern is enough
-role of international and foreign judgement would also be interpreted differently
based on thick vs thin

rule of law and courts insights

-separation of power
-8 dimensions of rule of law
court role, position, constitution, formation
don't just discuss the court's approach
judicial review processes-> check of balance of the goverment
(1) The law must be accessible and so far as possible intelligible, clear and
predictable.
-stare decisis, doctrine of precedent
(2) Questions of legal right and liability should ordinarily be resolved by
application of the law and not the exercise of discretion.
(3) The laws of the land should apply equally to all, save to the extent that
objective differences justify differentiation.
-objective difference, 4 steps proportionality test-> used in cases of differential
treatment which may hinder the righhts of some groups-> ensure differential
treatment are justified
(4) Ministers and public officers at all levels must exercise the powers conferred
on them in good faith, fairly, for the purpose for which the powers were conferred,
without exceeding the limits of such powers and not unreasonably.
-separation of power, prevent rule of man vs rule of law
(5) The law must afford adequate protection of fundamental human rights.
(6) Means must be provided for resolving, without prohibitive cost or inordinate
delay, bona fide civil disputes which the parties themselves are unable to resolve.
(7) The adjudicative procedures provided by the state should be fair.
(8) The rule of law requires compliance by the state with its obligations in
international law as in national law.

things to think about before heading to exam

how diff organs court, judges, legislation, play a role in shaping the legal
system
what powers they have, what rules give them power
their interaction with each other (whether check and balance) if combined do they
restrict or have more to do the best
compare their strengths and weakness
think of the goal or purpose of these organs
-protect rule of law
-thick(new) vs thin (old)
-human rights
-different approach (jurisdiction, purposive approach)