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Albert H. Y. Chen and P. Y. Lo
perhaps explain the relatively more rigorous application of proportion-
ality analysis in constitutional judicial review in the HKSAR than in the
MSAR.
8.5.4. Concluding Remarks
This chapter has demonstrated the high degree of similarity in the
structure and content of the Hong Kong and Macau Basic Laws, and
the similarities and differences between the two jurisdictions in the
practice of constitutional judicial review and the use of proportion-
ality analysis in judicial review of legal restrictions on rights. Whereas
the texts of the two Basic Laws provide some support for the exercise
of judicial power to determine whether a legislative provision or leg-
islative act is inconsistent with the Basic Law, the jurisprudence in
the two jurisdictions on the legal consequences of a judicial determi-
nation of such inconsistency forms part of the ‘invisible’ and extra-
textual constitution in each of the two jurisdictions. Although some kind
of proportionality analysis may be said to be implicit in the ICCPR that
is referred to in each of the two Basic Laws, the development and appli-
cation of proportionality analysis in the Hong Kong and Macau SARs are
also largely an outgrowth of the ‘invisible’ constitution.
121
This chapter shows that the similar texts in the two Basic Laws have
been similarly used by the courts in the Hong Kong and Macau SARs to
support the exercise of judicial power to determine questions of constitu-
tionality. At the same time, there exist both similarities and differences in
the relevant parts of the ‘invisible’ constitutions of the two jurisdictions as
regards the legal consequences of a judicial determination of inconsist-
ency between a legislative provision and the Basic Law and as regards the
application of proportionality analysis. Thus the texts of the Basic Laws
under-determine the constitutional jurisprudence; the texts are open-
ended enough to allow and sustain the evolution of ‘invisible’ constitu-
tions, which are to a significant extent determined by the different legal
normative point of view – one of providing Mainland authorities with steering capability over
these systems. The Mainland authorities gain that capacity by framing them within a cage of
quasi-constitutional, but still flexible, provisions they may interpret according to what they
think appropriate’.
121
Under the ICCPR, many of the rights protected thereby may be subject to such restrictions
as are prescribed by law and necessary to protect public safety, public order, national security,
public health or morals, etc.
The Constitutional Orders of ‘One Country, Two Systems’
267
traditions of the two former colonies, their judicial experience accumu-
lated before their handover to the PRC, and also partly by the institutional
features of their legal systems, different degrees of affinity with foreign
constitutional jurisprudence, the political culture of the community,
and the values of and choices made by the legal and judicial elites of the
two SARs.
268
America is the only country that went from barbarism to decadence without civilization
in between.
—Oscar Wilde
1
When Tom Ginsburg created, together with other scholars, the website
Constitute collecting the texts of all the constitutions of the world, he did not
include the Constitution of Israel.
2
Subsequently he got an angry email from
an Israeli law professor saying – “of course Israel has a constitution, please
include it!” This, I believe, could not have happened with regard to any other
country. Disagreements on the interpretation of constitutions are omnipres-
ent, but disagreement on whether a country has a constitution or not is quite
rare. Indeed this is not due to any oversight on behalf of Professor Ginsburg.
The same confusion is present among Israelis today – even among Supreme
Court judges
3
and common reference tools such as Wikipedia.
4
To show this,
1
See “Top Ten Quotes of Oscar Wilde; The Daily Universal Register” The Times, July 7, 2008,
27. But see the website
http://quoteinvestigator.com/
arguing that the quote is mistakenly
attributed to Wilde and was coined after his death.
2
www.constituteproject.org/
.
3
In a famous plurality decision, Justice Heshin argued against the idea that Israel has a constitution:
“We would at least have expected there to be no dispute over the actual authority to enact a consti-
tution. The very existence of disputes on this question indicates the tenuousness of the conclusion
that the current Knesset possesses constituent authority:” CA 6821/93 United Mizrahi Bank Ltd v.
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