|
Albert H. Y. Chen and P. Y. Lo
As discussed previously in this chapter, the HKSAR courts have engaged
in a step-by-step analysis in reviewing whether a statutory restriction on
a constitutionally protected right satisfies the proportionality test (or the
similar ‘justification test’ in cases on equality and non-discrimination). It
has also been pointed out previously that the HKSAR courts have adopted
a less rigorous version of the proportionality test in certain types of cases,
such as cases concerning socio-economic policies, social welfare and
social services. By contrast, although notions of necessity, proportional-
ity, reasonableness, arbitrariness and justification exist in the Macanese
jurisprudence, it seems that the ‘proportionality test’ (insofar as it can be
said to exist) in Macau has not been as precisely formulated as in Hong
Kong. Moreover, the practice of the Macanese courts in applying the pro-
portionality test is apparently such that they will only intervene where
the impugned action is manifestly unjustified or involves an intolerable
restriction of a protected right. This seems to suggest that the test applied
in Macau is close to the ‘less rigorous version’ of the proportionality test
in Hong Kong, or close to the common law standard of ‘Wednesbury
unreasonableness’.
As mentioned previously in this chapter, even before the 1997 handover, the
Hong Kong courts had already imported the proportionality analysis under
the Canadian Charter of Rights and Freedoms into the Hong Kong juris-
prudence on the Hong Kong Bill of Rights 1991. With the enactment of the
United Kingdom Human Rights Act in 1998, the rapidly developing jurispru-
dence in Britain on human rights and proportionality also became available
to the HKSAR courts. Led by the Hong Kong CFA, which almost invariably
includes a distinguished visiting judge from Britain, Australia or New Zealand
on its bench when it hears a case, the Hong Kong judiciary seeks to establish
its international reputation by ensuring that its jurisprudence is consistent
with the general trend in the common law world.
116
Comparatively speaking,
the MSAR courts, which operate in the Chinese and Portuguese languages,
are less internationally oriented.
117
Secondly, there have so far been very few cases in which the Macanese
courts had the opportunity to apply proportionality analysis, even inciden-
tally, in judicial review of legislation or norms having legislative effect, as
116
Many judges of the superior courts of the HKSAR were educated at some stage in the United
Kingdom, be it at the undergraduate or postgraduate level, and some also were called to the
English Bar and had undertaken pupillage with English barristers.
117
This can be noted from the Mainland Chinese and Portuguese sources cited in the TUI’s
judgments discussed above.
The Constitutional Orders of ‘One Country, Two Systems’
265
distinguished from judicial review of administrative actions. There were rel-
atively more cases of administrative appeals in Macau, in which the courts’
role was constrained by procedural rules and considerations of separation
of powers.
Furthermore, the political culture of the community, and the values of
and choices made by the legal and judicial elite in Macau are apparently
more conservative,
118
as compared to the more liberal political culture and
more liberal values of and choices made by the legal and judicial elite
in Hong Kong.
119
This is partly reflected in the TUI’s ‘open embrace’ of
the PRC’s constitutional system and its citations of the texts of Mainland
Chinese jurists on the MBL in the Burmeister case and other cases con-
cerning the interpretation of the MBL.
120
Some or all of these factors can
118
It is noted that a significant number of the present members of the Macanese judiciary are
persons born, raised and educated in Mainland China up to the undergraduate level before they
were inducted to the Portuguese language and laws necessary for them to man the judicial sys-
tem of Macau in preparation for the transition. They happen to include the two Chinese judges
on the current bench of the TUI. Castellucci, who had taught in Macau and conversed with
members of the local legal community, confirmed that the MSAR’s legal community ‘is trans-
forming from being characterised by a strong Portuguese legal presence towards a more Chinese-
influenced body of judges, lawyers and government officials’: Castellucci, Supra note 1, 703.
119
Ip (Supra note 1) argues that the more conservative orientation of the Macanese courts and
the more liberal orientation of Hong Kong courts are results of strategic choices made by
the judiciary in the two jurisdictions in response to their different political environments.
According to Ip’s analysis, the likelihood (as anticipated by the judiciary) of ‘retaliation’
against or ‘punishment’ of the judiciary by the regime is lower in Hong Kong and higher
in Macau, due to the lack of internal cohesion within the regime and significant ‘popular
resistance’ against it in Hong Kong, as contrasted with a more united regime and ‘minimal’
popular resistance against it in Macau (thus the ‘political transaction costs’ of the regime’s
action to ‘discipline’ the judiciary would be higher in Hong Kong and lower in Macau);
hence the Hong Kong judiciary could choose to be more liberal and activist, while the
Macanese judiciary chose to be more conservative and restrained. In our view, such stra-
tegic choice is probably one of the relevant factors that can explain the differences in the
constitutional jurisprudence of the Hong Kong and Macau SARs, but we doubt that this is
the primary and overriding factor.
120
Castellucci has observed the ‘increasing seeping’ of the PRC’s socialist ideas of governance,
including that of using the law to make and further state policy, into ‘the political-institutional
framework and culture of the SARs’; see Castellucci, Supra note 1, 676. He considers Macau’s
resistance to such ‘infiltration’ to be ‘lower’, as the MSAR’s civil law-based legal system, which
does not recognise the binding force of precedents, is ‘more flexible’ in accommodating
changes associated with the ‘new political environment after the handover to China’:
ibid.
,
697–8. A confirmatory comparison is made between the MSAR’s legal system with those of
European socialist countries, to the effect that such systems are ‘more apt, in its language and
technicalities, to introduce and enforce more communitarian ideas’:
ibid.
, 699. Castellucci
has presciently observed at 694–5: ‘[The] purpose of the basic laws is not just that of isolating
the SARs’ legal systems, as discernable from their black-letter text from a common law nor-
mative perspective. Their purpose is also – . . . from the functional Chinese rather than the
266
Do'stlaringiz bilan baham: | 
