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The Chinese University of Hong Kong

Faculty of Law

LAWS1100 – Hong Kong Constitutional Law

TUTORIAL READING LIST & QUESTIONS

WEEK 2: DEVELOPMENT OF CONSTITUTIONAL LAW AND CONSTITUTIONALISM IN

THE HKSAR

PRESCRIBED READING

Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of the People’s Republic of China on the Question of Hong Kong, signed 19
December 1984 http://www.cmab.gov.hk/en/issues/joint3.htm [Please read the text of the
Declaration and Part I (Constitution) of Annex I].

Chapter 1 (“From Colony to Special Administrative Region”) in Chan & Lim Law of the Hong Kong
Constitution (3rd ed).

Benny Yiu-ting Tai, “The Development of Constitutionalism in Hong Kong” in The New Legal Order
in Hong Kong (edited by Raymond Wacks, 1999) [Please read pp. 39-65].

TUTORIAL QUESTIONS

1. What’s the relationship between constitutionalism and the rule of law?

Rule of law is one of the features and an important element of constitutionalism
The idea of constitutionalism is an idea and existence of a limited government under a
higher law
Having rule of law limits what the government can or cannot do
Higher degree of the rule of law, higher degree of constitutionalism
Formalist rule of law can be authoritarian legal system and monarchial system
Formalist rule of law could be strong even if you don’t have separation of power, no
election etc
Substantive rule of law tends to overlap with the rule of law as it includes elements that are
a part of constitutionalism

2. How has constitutionalism developed in Hong Kong from the colonial era to the
handover?

Benny Yiu-ting Tai

Constitutionalism have several aspects:
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• Rule of law
• Decentralized central gov’t
• Checks and balance
• Democratic Electoral System
• In-built human rights protection system

1st stage: Constitutionalism of Colonisation (1840s-1960s)

Low degree of constitutionalism because British only wanted HK for business à their main objective
is to maintain order instead of establishing principles to limit the government
1. Low degree of rule of law
• Main objective for British is to maintain social order à ROL not necessarily needed
• Laws usually gave a lot of power to the government à law is a tool for domination
• Law is not an important element as there was serious corruption problem
• No substantive ROL but is there formal ROL? à formalist ROL is interesting bc the
colonial administration did not care about crimes à but as HK become more economically
important, it starts to matter à formalist ROL is weak but gradually improving
2. Centralized government
• The government in London appointed governors and main officials à only some locals can
be appointed but they represent similar interest as Britain
• Colonial government make decisions on local matters, but they were senior officials from
the UK
• Chinese unofficial members < non-Chinese unofficial members
• No electoral members
3. Checks & Balance – an executive-led gov’t
• Governor is the head of the executive branch and the president of Legco à he has ultimate
power
• Legco officials were people appointed by the governor, so they dare not contradict or
challenge the governor
4. No democratic electoral system
• No elections in major government institutions
• Only found in Urban council which is for public health
• No channel for locals to participate in decision-making process
5. Limited human rights protection
• Main focus of the law is for maintenance of order à example is after the 1967 riot, where
CCP riot against the British government, the government did not allow public gathering or
people associating with political camps
6. No higher law
• Letters Patent is a constitution à but it centralizes all power to the governor

2nd stage: De-Colonization of a third kind (1970s)

Decolonization around the globe
1. Higher but still limited degree of rule of law
• Fighting corruption by setting up ICAC which allowed the people to gain back confidence in
the law
• Locally made decisions still had to be endorsed by the government in London
2. Not centralized government but a government by consensus
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• Since local entrepreneurs and a middle class were on the rise, they demanded more
participation in local affairs
• Advisory committees and consultative organizations were set up
• More Chinese unofficial members were appointed
3. Superficial checks & balance
• The consultative org/committees were a closed system and colonial administration would
only appoint those that have shared interests à not effectively restrain the government
4. No democratic electoral system in major government institutions such as Legco
5. Marginal human rights protection
• ICCPR was made applicable, but it did not enjoy direct legal status so human rights of the
locals were still not protected
• More social welfares so people’s quality of life improved
Chinese refugees under the Cultural Revolution demanded better and more rights
3rd stage: Representative government that came late (1980s)
Bilateral treaty between the PRC and the Joint Declaration à laid down the terms of how HK would
hand over to the PRC à HK had little say in this bilateral treaty
People are starting to think about the different elements of Constitutionalism

Tai is not a formalist, so his assessment of different periods is based on substantive rule of
law
But you might have a different view if you’re a formalist