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The Constitutional Orders of ‘One Country, Two Systems’
231
The texts of the two Basic Laws are very similar, and many of their provi-
sions are almost identical. Despite such similarity in the texts of the two Basic
Laws, ‘the judicial construction of the Basic Law’ has resulted in different
constitutional orders in Hong Kong and Macau.
1
A comparative study of the
constitutional jurisprudence of the Hong Kong and Macau SARs can thus
provide an interesting case study of the interaction between the ‘visible’ and
‘invisible’ constitutions of each of the two jurisdictions as regards constitu-
tional review and interpretation.
In this chapter, we explore the ‘visible’ and ‘invisible’ constitutional bases
of the founding and development of constitutional judicial review in the
Hong Kong and Macau SARs. We compare the similarities and differences
in their textual and extra-textual constitutions, particularly in the contexts of
the origins of the power of constitutional judicial review and the use of pro-
portionality analysis in the exercise of such power of review. We conclude that
the differences in their constitutional jurisprudence are to a significant extent
explicable in terms of the different legal traditions of the two former colonies,
their judicial experience accumulated before their handover to the PRC and
also partly in terms of the institutional features of their legal systems, different
degrees of affinity with foreign constitutional jurisprudence, the political cul-
ture of the community and the values of and choices made by the legal and
judicial elites of the two SARs.
This chapter will consist of the following sections, apart from this Introduction
(Section
8.1
). Section
8.2
will introduce the historical and political contexts of
the enactment of the two Basic Laws. It will also identify the similarities and
differences between the two Basic Laws. Sections
8.3
and
8.4
will review the
development of constitutional judicial review and the use of proportionality
analysis in Hong Kong and Macau respectively. Finally, Section
8.5
will provide
a comparative analysis, and seek to understand and explain the differences in
the relevant constitutional jurisprudence.
1
This is the title of P. Y. Lo (Pui Yin Lo)’s book, The Judicial Construction of Hong Kong’s Basic
Law: Courts, Politics, and Society after 1997 (Hong Kong: Hong Kong University Press, 2014).
As to the courses of construction embarked by the courts of the HKSAR and the courts of the
MSAR, see Sections
8.3
and
8.4
. As to earlier comparisons of their legal systems and their
approaches to constitutional review in the English language, see Ignazio Castellucci, ‘Legal
Hybridity in Hong Kong and Macau’ (2011) 57 McGill Law Journal 665; Eric Ip, ‘The Evolu-
tion of Constitutional Adjudication in the Chinese Special Administrative Regions: Theory
and Evidence’ (2013) 61 American Journal of Comparative Law 799.
232
Albert H. Y. Chen and P. Y. Lo
8.2. The Historical and Political Contexts of the Enactment
of the Basic Laws of the Hong Kong and Macau SARs
8.2.1. The Case of Hong Kong
The British Empire acquired the colony of Hong Kong from China in three
stages: the cession of Hong Kong Island by the Qing Emperor then ruling
China to Britain in 1842 after the ‘Opium War’; the cession of Kowloon
Peninsula (across the harbour from and to the north of Hong Kong Island)
by the Qing Imperial Court to Britain in 1860 after the Anglo-French forces
invaded Peking; and the ninety-nine-year lease by the Qing Imperial Court to
Britain of the ‘New Territories’ (north of Kowloon) in the midst of the foreign
powers’ ‘scramble for concessions in China’ in 1898.
2
As the British ‘lease’ over Hong Kong’s New Territories would expire in 1997,
British Prime Minister Margaret Thatcher visited Beijing in 1982 and initiated
negotiations with the PRC Government on Hong Kong’s future. The result
was the Sino–British Joint Declaration signed at the end of 1984.
3
The Joint
Declaration provided for Hong Kong’s return to China in 1997.
4
The PRC
undertook to allow Hong Kong to practise a high degree of autonomy as a SAR
of the PRC after 1997. There would be ‘Hong Kong people ruling Hong Kong’
instead of the PRC government sending its Communist Party cadres to rule
Hong Kong. Hong Kong would be permitted to retain its existing economic,
social and legal systems (including capitalism, private ownership of property,
the English common law and existing provisions for the protection of human
rights and civil liberties) in accordance with Deng Xiaoping’s concept of ‘One
Country, Two Systems’: Hong Kong would become an integral part of the
‘One Country’ of China, but the Chinese mainland and Hong Kong would
practise different ‘systems’ – ‘socialism’ and ‘capitalism’ respectively.
5
2
See generally Peter Wesley-Smith, Constitutional and Administrative Law (Hong Kong: China
& Hong Kong Law Studies, 2nd edn 1994) 23–30.
3
See generally Yash Ghai, Hong Kong’s New Constitutional Order (Hong Kong: Hong Kong
UP, 2nd edn 1999), ch. 2.
4
How Hong Kong was ‘agreed’ by Britain and the PRC to be returned in 1997 was not only a po-
litical struggle between the negotiating parties, but also a legal challenge both in public inter-
national law and the domestic constitutional law of the two respective states, bearing in mind
that Britain, as described above, acquired parts of Hong Kong by cession through treaty and
the remainder (the ‘New Territories’) by lease through treaty with a term of 99 years as from
1898. The PRC considered those treaties to be ‘unequal treaties’ and refused to recognise their
validity; it preferred to describe the return of Hong Kong to the Motherland as ‘resumption of
exercise of sovereignty’. The legal consequences of these positions and their implications and
consequences for contemporary Hong Kong deserve a separate study.
5
Section 1 of Annex I to the Joint Declaration provides that ‘after the establishment of the Hong
Kong Special Administrative Region the socialist system and socialist policies shall not be
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