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The Constitutional Orders of ‘One Country, Two Systems’
237
MBL (which applies to legislation enacted by the legislature of the relevant
SAR), art. 160(1) of the HKBL and art. 145(1) of the MBL (which applied at
the transition in respect of the ‘laws previously in force’). There is no express
provision on the power of the courts of the HKSAR or MSAR to invalidate or
determine as invalid any Hong Kong or Macau law that the court considers
to be inconsistent with the Basic Law, but the courts of the two SARs are
empowered to interpret the Basic Law, subject to the requirement to seek an
interpretation from the NPCSC in the circumstances defined in art. 158 of
the HKBL and art. 143 of the MBL. Furthermore, art. 19(2) of both the HKBL
and MBL defines the scope of the jurisdiction of the courts of the two SARs
by reference to their existing jurisdiction before the establishment of the SAR.
8.3. Constitutional Judicial Review and
Proportionality Analysis in Hong Kong
8.3.1. Constitutional Review in Colonial Hong Kong
At the time of the enactment of the HKBL in 1990, there was little case law
and jurisprudence in colonial Hong Kong on constitutional judicial review of
legislation, though judicial review of administrative action and of delegated
legislation in accordance with principles of English administrative law (such
as the ultra vires doctrine and the Wednesbury unreasonableness standard of
‘rationality’ review) was well established in the colony.
Hong Kong’s colonial constitution
12
was contained in the Letters Patent
issued by the British Crown,
13
which established the executive, legislative
and judicial branches of the colonial government. Unlike Acts of Parliament
which could not be reviewed by British courts because of the doctrine of
Parliamentary supremacy, the colonial legislature in Hong Kong, i.e., the
Governor acting with the advice and consent of the Legislative Council,
only enjoyed limited legislative powers. For example, insofar as its powers
were derived from the Letters Patent, it could not act ultra vires the Letters
Patent.
14
Furthermore, the Colonial Laws Validity Act enacted by the British
12
The discussion here draws on Albert H. Y. Chen, ‘The Interpretation of the Basic Law – Com-
mon Law and Mainland Chinese Perspectives’ (2000) 30 Hong Kong Law Journal 380, 417–20.
13
See generally Norman Miners, The Government and Politics of Hong Kong (Hong Kong:
Oxford University Press, 5th edn 1995), ch. 5; Peter Wesley-Smith, Constitutional and Admin-
istrative Law in Hong Kong (Hong Kong: Longman Asia, 1995), ch. 2.
14
See R v. Ibrahim (1913) 8 HKLR 1 (FC); Ho Po Sang v. Director of Public Works [1959] 1 HKLR
632 (FC). Cf R v. Burah (1878) 3 App. Cas. 889 (PC), at 904–5; Powell v. Apollo Candle Co (1886)
10 App Cas 282 (PC); Hodge v. R (1883) 9 App Cas 117 (PC).
238
Albert H. Y. Chen and P. Y. Lo
Parliament in 1865, which was applicable to Hong Kong as it was applicable
to other parts of the British Empire – provided that colonial laws that were
repugnant to applicable Acts of Parliament would be null and void.
15
The
courts of Hong Kong, including the Judicial Committee of the Privy Council
in London which served as the final appellate court of the Hong Kong judicial
system, had the power to review whether any statutory provision enacted by
the Hong Kong legislature was ultra vires the colonial constitution or other-
wise invalid under the Colonial Laws Validity Act 1865 or any other law that
limited the legislature’s competence.
In practice, however, the courts of colonial Hong Kong had few opportuni-
ties to exercise this power of constitutional judicial review of legislation.
16
This
was because the Letters Patent were only a crude and rudimentary written
constitution for the colony. It did not contain any guarantee of civil liberties
and human rights. It did not contain elaborate provisions on the powers of
and relationship between the executive, legislative and judicial branches of
the colonial government. Nor did it set up any system of division of power as
between the colonial government and the metropolitan government.
In the light of this historical background, what happened in 1991 can
be regarded as the first constitutional revolution in Hong Kong – the sec-
ond being, of course, the reversion to Chinese rule and the HKBL coming
into force in 1997 (which involved a shift in the Grundnorm).
17
In 1991, in
an attempt to restore confidence in Hong Kong’s future which had been
deeply shaken by the Tiananmen incident of 4 June 1989,
18
the Hong Kong
Government introduced and the local legislature passed the Hong Kong Bill
15
See Rediffusion (HK) Ltd v. AG [1970] AC 1136 (PC). The HKSAR courts even recognised
repugnancy under the Colonial Laws Validity Act 1865 in 2003; see A Solicitor v. Law Society
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