The Invisible Constitution in Comparative Perspective

The Constitutional Orders of ‘One Country, Two Systems’ 

257

(não fundamentadas, não objectivas, não razoáveis/meiyou yiju, bu keguan, he 

bu heli 沒有依據、不客觀和不合理).

97

The above discussion suggests that while the MSAR courts maintain their 

adherence to the principle of proportionality as a tool of review of adminis-

trative decisions and legal norms in the European continental tradition, they 

likewise have followed the tradition of exercising judicial review and declar-

ing an administrative act invalid or a legal norm not applicable only in man-

ifestly unjustified cases, applying a methodology that looks into the matter 

more intuitively than by way of a structured and progressive examination of 

normative and operational issues, which is the form of proportionality test that 

has characterised recent human rights jurisprudence in the HKSAR and the 

common law world.

8.5.  A Comparative Analysis

8.5.1.  Some Theoretical Considerations

The Basic Laws of the Hong Kong and Macau SARs both provide that SAR 

laws may not contravene the Basic Law, but neither of them contains any 

express provision authorising the courts to review whether a legislative pro-

vision of the SAR is inconsistent with the Basic Law and specifying the legal 

consequences of such inconsistency. In this regard, the written basis – or 

lack thereof – of constitutional judicial review in the Hong Kong and Macau 

SARs is as inadequate as that under the Constitution of the United States. As 

Professor Andrei Marmor has pointed out, even if one accepts the supremacy 

of the constitution and that there must be some institution having the power 

to determine in concrete cases whether a conflict between the constitution 

and ordinary legislation exists or not, ‘it simply does not follow that this insti-

tution must be the supreme court, or any other institution in particular’.

98

 He 

elaborates as follows:

First, that [constitutional judicial review] is not a necessary feature of a 

constitutional regime . . . [It] is certainly conceivable to have a legal system 

with a written constitution without entrusting the power of its authoritative 

97 

See TUI Case No 5/2010 (12 May 2010) 31–8. See also the subsequent case of TUI Case No 

33/2012 (4 July 2012) (which was also a civil service conditions of service case).

98 

Andrei Marmor, Interpretation and Legal Theory rev. 2nd edn (Oxford: Hart Publishing 2005) 

149. Jutta Limbach agreed, indicating that: ‘The power of judicial review is a chief legal in-

strument in the system of checks and balances. Nevertheless, it is not a universal or necessary 

element of a democratic constitution’: see Limbach, Jutta, ‘The Concept of the Supremacy of 

the Constitution’ (2001) 64 Modern Law Review 1, 5.

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258 

Albert H. Y. Chen and P. Y. Lo

interpretation in the hands of the judiciary, or, in fact, in the hands of any-

body in particular. Therefore, secondly, it is also widely acknowledged that 

the desirability of judicial review is mostly a question of institutional choice: 

given the fact that we do have a constitution, which is the most suitable 

institution that should be assigned the role of interpreting it and applying it 

to particular cases? Finally, it is widely acknowledged that the courts’ power 

of judicial review is not easily reconcilable with general principles of democ-

racy. Even those who support the legitimacy of judicial review, acknowledge 

the existence of at least a tension between our commitment to democratic 

decision procedures and the court’s power to overrule decisions made by a 

democratically elected legislature.

99

Marmor acknowledges the difficulty of lawyers in particular in understand-

ing why judicial review of legislation requires justification separate from the 

supremacy of constitutions:

For them the reasoning of Marbury v. Madison is almost tautological. We just