The Invisible Constitution in Comparative Perspective

The Constitutional Orders of ‘One Country, Two Systems’ 

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8.5.3.  Proportionality Analysis in the Hong Kong and Macau SARs

It is noteworthy that the principle of proportionality has, following the con-

tinental European tradition, been established in the administrative law of 

Macau. By contrast, the traditional common law approach to judicial review 

of administrative action in Hong Kong has been based on the triple grounds 

of illegality, procedural impropriety and irrationality (Wednesbury unreasona-

bleness). With the development of constitutional protection of human rights, 

it has now become possible to apply principles of proportionality to judicial 

review of administrative actions that restrict human rights.

114

  As discussed 

above in this chapter, the Hong Kong courts have, since the 1990s, practised 

constitutional judicial review of legislative restrictions on constitutionally 

guaranteed rights by applying principles of proportionality, and have devel-

oped a considerable body of jurisprudence in this regard. By contrast, there 

is relatively little case law in the MSAR on the application of proportionality 

analysis in the review of legislative, as distinguished from administrative, acts. 

This can be explained by the fact that there have been in the MSAR relatively 

fewer cases of constitutional judicial review of legislation as compared with 

Hong Kong.

115

Supra note 1, 816, 818–20. In this chapter, we have focused on the legal and institutional reasons 

for the development of the judicial power to review legislative enactments in the HKSAR and the 

MSAR, though we acknowledge the relevance of the myriad of factors discussed in Ip’s article, 

including in each case of Hong Kong and Macau the SAR’s economy, the SAR’s international 

connections and significance, the identity of the SAR’s population with ‘Chinese’ identity, the 

organisation and orientation of the SAR’s civil society, the likelihood of opposition politics and 

social movements in the SAR extending the arena of struggles to the courts, and the organi-

sation and outspokenness of the SAR’s legal profession. See also, in this regard, Sir Anthony 

Mason, ‘The Rule of Law in the Shadow of the Giant: the Hong Kong Experience’ (2011) 33 

 

Sydney Law Review 623. We also note that Ip has not tested his hypotheses quantitatively, stat-

ing that ‘[it] will be difficult to obtain empirical evidence that judges anticipate the responses 

of the regime if the latter has never retaliated’: Ip, Supra note 1, 824. Although Ip has (at 826–7) 

touched upon the TUI’s repeated reversal of the ‘assertive’ TSI’s judgment in the series of cases 

on administrative regulations beginning with the Burmeister case, and suggested that TUI did 

so ‘in order to survive in the face of an implied and credible political threat or retaliation’, we 

are unable to confirm Ip’s proposition in this regard in light of the comprehensive judgment of  

the TUI surveying and analysing the relevant constitutional sources (including citing cases 

of the Portuguese Constitutional Court) and the complexity of the controversy in question, 

which was best settled by the enactment of a law (lei) by the MSAR’s legislature.

114 

See Leung Kwok Hung, Supra note 32.

115 

Relevant factors affecting the number of cases in the MSAR include the size of the economy 

and society, both in terms of the economic and social interactions and the legal service sector, 

and features of the MSAR judiciary, including the size of the establishment, the delays in 

rendering court rulings, the erratic holding of hearings in contentious cases and general effi-

ciency; see Wei Dan, Supra note 57, at 248.

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