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Albert H. Y. Chen and P. Y. Lo
prescribed powers’ was no more than a matter of ‘established practice’, Judge
Hand counselled discretion:
[judicial review] need not be exercised whenever a court sees, or thinks that it
sees, an invasion of the Constitution. It is always a preliminary question how
importunately the occasion demands an answer. It may be better to leave the
issue to be worked out without authoritative solution; or perhaps the only
solution available is one that the court has no adequate means to enforce.
104
8.5.2. Constitutional Judicial Review in the Hong Kong
and Macau SARs
The development of constitutional judicial review in the Hong Kong and
Macau SARs as discussed previously in this chapter well illustrates the above-
mentioned points made by Marmor and Hand. On the basis of Basic Laws that
do not expressly authorise constitutional judicial review, the courts of both
the HKSAR and MSAR have made the ‘institutional choice’ of assuming the
power to determine questions of constitutionality. As shown previously in this
chapter, the approaches of the HKSAR and MSAR courts in the adjudication
of cases on the interpretation of the Basic Law share certain similarities. The
courts of both SARs seek to enforce the supremacy or superiority of the Basic
Law in the adjudication of cases, as part of their exercise of judicial power,
even though no provision of the Basic Law of each SAR confers specifically
upon the courts the power to investigate, examine or review legal norms for
consistency with the Basic Law. The courts of both SARs have sought to jus-
tify such enforcement by reference to what other jurisdictions with a written
constitution have been doing, referring explicitly in the case of the TUI and
implicitly in the case of the HKCFA to the Marbury v. Madison model of
judicial review.
105
Yet the approach of the TUI to the exercise of examining legal norms to
check whether they are consistent with the MBL differs significantly from
the exercise by the HKSAR courts of their constitutional jurisdiction, which
has been asserted and practised since Ng Ka Ling, in that while a finding by
a MSAR court of inconsistency operates modestly and momentarily as part
of the reasoning of the court towards judgment adjudicating and disposing
104
Ibid.
, 14–15.
105
The matter might be more problematic for the TUI since there is no equivalent in the MBL
of art. 84 of the HKBL, expressly permitting reference to precedents of other common law
jurisdictions.
The Constitutional Orders of ‘One Country, Two Systems’
261
of the particular case before the court, a finding by a HKSAR court of incon-
sistency entails, as a matter of judicial duty as a constitutional check of the
other branches of government, a declaration of inconsistency, invalidating the
legislative provision or executive act in question for all purposes (‘null and
void’) – it purports to have effect erga omnes – and with provisions detailing
‘excisions’ or other modifications,
106
and time limit for correction.
107
Professor Yash Ghai observes that if the Macanese approach were to be
applied in Hong Kong, then as long as the doctrine of precedent remains
part of the legal system, the refusal of the CFA to apply a particular legislative
provision would constitute a precedent, and the effect would not be substan-
tially different from declaring it invalid.
108
In contrast, the Macanese approach
appears to be what Wang Shuwen and his team of authors counselled,
109
and
in keeping with the syllogism theory underlying the continental legal tradi-
tion that judges ‘apply’ the statutes, which express the general will, to solve
the particular case.
110
This might find expression in the judicial independence
provision in art. 89 of the MBL, which provides that judges of the MSAR shall
exercise judicial power according to law, instead of according to any order or
instruction, except in the situation as prescribed in art. 19(3) concerning the
Chief Executive’s certificate binding on questions of fact concerning acts of
state. This provision apparently had a counterpart in the previous legal order
in art. 53(1) of the Estatuto Organico de Macau.
The divergence in judicial approach between the two jurisdictions can per-
haps be explained with reference to the different legal traditions that already
existed in the two jurisdictions at the time of the establishment of the SAR.
106
Dong Likun, Zhang Shutian, and other mainland legal scholars often took exception of the
elaborate terms of the declarations and relief in Ng Ka Ling v. Director of Immigration (1999)
2 HKCFAR 4, 45–8; see Dong Likun and Zhang Shutian, ‘Power to Review Legislation of the
Hong Kong Special Administrative Region Inconsistent with the Basic Law’ (2010) 32(3) Chi-
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