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The Constitutional Orders of ‘One Country, Two Systems’
255
interest balancing with the yardstick of reasonableness amongst conflicting
interests.
Upon application, however, the question for determination by the MSAR
court appears to be whether the principle of proportionality has been man-
ifestly violated (mingxian weibei 明顯違背/manifestamente violado) in the
administrative decision-making, so that the court would intervene to set aside
the administrative act in question.
88
This judicial approach of intervention
only in respect of a manifest violation or a decision that intolerably contra-
venes the principle follows to some extent the French judicial approach,
89
as well as, curiously, the English Wednesbury unreasonableness approach.
90
Further, when the TUI adjudicates a case on administrative appeal, the thresh-
old for intervention is governed by the Code of Administrative Litigation,
so that where the impugned decision was reached by exercising discretion,
it could only be properly challenged on the basis that there was a manifest
error in the exercise of the power or that the discretion was exercised utterly
unreasonably.
91
The TUI’s jurisdiction to hear and determine appeals from decisions refus-
ing or restricting assemblies or demonstrations is provided by legislation.
Access to this appellate jurisdiction of the TUI is direct and without condi-
tions, so as to enable the expeditious determination by a court of full jurisdic-
tion in respect of an administrative decision affecting the rights of assembly
and demonstration, both of which are guaranteed under art. 27 of the MBL,
with the aim of restoring the exercise of such rights as swiftly as possible.
92
In
about seventeen judgments spanning the last decade in this type of appeals,
the TUI had examined restrictions to meetings or demonstrations in terms of
whether the particular restriction was ‘prescribed by law’ within the meaning
88
See TUI Case No 6/2000 (27 April 2000).
89
This reference turns out to be unhelpful, as the French Council of State had only explained
the nature and structure of the proportionality test (the triple test of suitability, necessity and
proportionality) it applied as late as in 2011 and the French administrative law literature had
not been able to identify and discuss the applicable degree of control or intensity of the pro-
portionality test, though there has been discussion of ‘limited control’ where the judge acts
only in respect of ‘obvious’ or ‘manifest’ errors; see Yoan Sanchez, ‘Proportionality in French
Administrative Law’ in Sofia Ranchordas and Boudewijn de Waard (eds.), The Judge and the
Proportionate Use of Discretion (London: Routledge, 2016) 45–52, 61–71. Cf. Federico Fab-
brini, ‘“Reasonableness” as a Test for Judicial Review of Legislation in the French Constitu-
tional Council’ (2009) 1 Journal of Comparative Law 39.
90
See TUI Case No 26/2003 (15 October 2003), quoting the jurist David Duarte, who indeed
referred to the Wednesbury case in his 1996 work on the topic. This judicial opinion has been
followed continuously thereafter; see TUI Case No 62/2015 (4 December 2015).
91
See TUI Case No 1/2006 (21 June 2006).
92
See TUI Case No 16/2010 (29 April 2010) 4–5.
256
Albert H. Y. Chen and P. Y. Lo
of art. 40(2) of the MBL (including whether there was a ground based on con-
ferred power to impose the restriction (不能根據法律沒有訂定的權利作出
決定
)), whether a restriction was an ‘intolerable restriction to a fundamental
right’ (對一項基本權利造成不可承受的限制), and ensuring that restrictions
to art. 27 should be as small as possible and properly explained.
93
The TUI had
even commented that the law should resolve the problems arising out of con-
flicting rights by prescribing basic principles consistent and proportionate with
the aims to be achieved that should be complied with when the same place
is used for different demonstrations.
94
However, the TUI had maintained that
it would act consistently with the general principle of administrative litiga-
tion when it exercises this appellate jurisdiction, so that it would not interfere
with the administrative decision-maker’s exercise of his discretionary power in
respect of whether such power was properly exercised, and would only declare
the relevant administrative act unlawful and invalidate it where the exercise of
such power amounted to a manifest error or absolute unreasonableness (在行
使該權限時出現明顯錯誤或絕對不合理的情況時
).
95
As we have mentioned above, the TUI had applied in Case No 5/2010 the
principle of equality enshrined in the MBL to review a legal or legislative
norm concerning the deduction of seniority due to sick leave for teachers
and held that the impugned legal norm was inconsistent with the MBL’s
protection of the principle of equality in art. 25. The TUI, having stated the
principle in terms of relevant difference or distinction between two situations,
asserted that if the situations were basically the same, but there was unequal
treatment, then the principle had been violated from the perspective of pro-
hibition of ‘arbitrariness’ (proibição do arbítrio/jinzhi duduan 禁止獨斷).
96
In
this connection, the TUI indicated that this perspective or theory of prohibi-
tion of arbitrariness specifies and determines the limits of judicial review, so
that this substantively passive standard of review condemns only those une-
qual situations that are manifest and intolerable; such a situation, the TUI
so considered, would only occur where the differential treatment prescribed
by the legislator is ‘lacking in justification, objectivity and reasonableness’
93
See TUI Case No 16/2010 (29 April 2010), TUI Case No 21/2010 (4 May 2010), TUI Case No
2/2011 (12 January 2011), TUI Case No 95/2014 (30 July 2014), TUI Case No 15/2016 (11 March
2016).
94
See TUI Case No 16/2010 (29 April 2010) 10.
95
See TUI Case No 75/2010 (17 December 2010) 6.
96
The TUI reiterated this principle in a series of cases concerning the appointment and condi-
tions of service of nurses; see TUI Case No 9/2012 (9 May 2012), TUI Case No 19/2012 (9 May
2012), TUI Case No 27/2012 (16 May 2012) and TUI Case No 33/2012 (4 July 2012).
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