1. While Hong Kong’s current colonial government is constituted under certain Letters Patent and Royal Instructions, these documents contain no bill of rights component and Hong Kong has had no experience with constitutional judicial review of legislation. Historically, a more important conceptual limitation on the legislature may have been the enormous powers of the colonial governor. While Hong Kong courts have not historically asserted any power to throw out legislation for offending the Letters Patent and Royal Instructions, such courts have in contexts other than the review of legislation asserted a power to construe the meaning of the constitutional documents and have a limited experience with other forms of review of legislation. Furthermore, while it does not appear that Hong Kong courts have actually exercised constitutional judicial review to invalidate local legislation, recent opinion has increasingly asserted the view that Hong Kong courts, at least in theory, possess such power. See P. Wesley-Smith, Constitutional and Administrative Law in Hong Kong, Vol. II (China and Hong Kong Law Studies, Hong Kong, 1987). Others, in view of the fact that such power has not in fact been exercised, take the view that it does not exist. See note 80. Nevertheless, constitutional judicial review, while possibly being a new addition within the emerging more elaborate future constitutional framework, would be consistent with the existing Hong Kong experience. With these important distinctions, however, it is generally true that by legal training and practice Hong Kong has largely (with limited exceptions) shared the British unwritten constitutional tradition of legislative supremacy. While Annex I, Article II of the Joint Declaration, calls for continuance of Hong Kong’s current laws, it therefore appears that the implementation of a written basic law with a bill of rights component will inherently cause a fundamental change from which there will be no adequate appeal to the present system.
2. See generally A. Chen, ‘Jiben Fa de Jiben Gou Xiang’, (The Basic Idea of the Basic Law), Wide Angle Magazine, 164, 16 May 1986, pp. 44–8.
3. For indications of the vigour of resort to courts for review of administrative process in Hong Kong, see generally D. J. Clarke, B. Lai and A. Luk, Hong Kong Administrative Law: Cases and Materials (Unpublished Manuscript, University of Hong Kong, Department of Political Science, 1986, 600 pages).
4. It should be noted that the PRC does not employ constitutional judicial review, using instead legislative implementation of its national constitution, i.e., constitutional rights and principles take on life when enacted into legislation by the NPC or its Standing Committee. Constitution of the People’s Republic of China, Article 67. See generally, R. Edwards, L. Henkin, A. Nathan, Human Rights In Contemporary China, (Columbia University Press, New York, 1986);
5. A. Chen, ‘Xiang Gang ji ben fa de jie shi’ (The question on the interpretation of the Hong Kong Basic Law), Wide Angle Magazine, 150, pp. 24–7, 16 March 1985. As noted in Chapter 2, some Beijing drafters have compared the draft provisions with practices in the European Community, but this has been put forth later as a way of responding to questions concerning independence and finality of the local courts under the draft. The model, however, is rooted in Chinese practice and not the European Community, especially as regards legislative interpretation.