Constitutionalism, the Rule of

Law and Judicial Review

GPAD1100/ UGEC1814 Politics, Law and Society
Spring 2022, Nelson K. Lee
Lecture 3, 14th February 2022
Constitutionalism

1. Aristotle:

• Formal distinction between ordinary law and constitutional law:

• “A constitution is the organization of offices in a state, and

determines what is to be the governing body, and what is the end of
each community. But laws are not to be confounded with the
principles of constitution; they are the rules according to which the
magistrates should administer the state, and proceed against
offenders.” (Aristotle, Politics, in Smith, 26)
Con’t
• Three elements of constitution (ibid, 26):
• An element which deliberates about public affairs
• Concerned with the magistracies
• Which has judicial power

• “The words constitution and government have the same meaning … The true
forms of government, therefore, are those in which the one, or the few, or the
many, govern with a view to the common interest; but governments which
rule with a view to the private interest … are perversions.” (ibid, 28)
Con’t
• True forms of government and their perversions:
• One rules: Kingship vs. tyranny
• More than one rule: Aristocracy vs. oligarchy
• Citizens at large rule: Constitution vs. democracy (mob rule)

• “It is clear then that a state is not a mere society, having a common place,
established for the prevention of mutual crime and for the sake of exchange …
The end of the state is the good life … And the state is the union of families and
villages in a perfect and self-sufficing life, by which we mean a happy and
honorable life.” (ibid, 30)
Con’t
2. Montesquieu

• “It is true that in democracies the people seem to act as they

please; but political liberty does not consist in an unlimited
freedom.” (Montesquieu, The Spirit of the Laws, in Smith, 34)

• “Every man invested with power is apt to abuse it … To

prevent this abuse, it is necessary from the very nature of
things that power should be a check to power. A government
may be so constituted, as no man shall be compelled to do
things to which the law does not oblige him, nor forced to
abstain from things which the law permits.” (ibid, 34)
Con’t
• “In order to have this liberty, it is requisite the government be so constituted as
one man need not be afraid of another.” (ibid, 35)

• “Separation of powers of the legislative, executive and judicial branches of the

government (ibid, 35), bicameralism.” (ibid, 37)

• “There would be an end of everything, were the same man or the same body,
whether of the nobles or of the people, to exercise those three powers …” (ibid,
35)
Constitution
1. Constitution:

as a system of government:

• Defines the fundamental political principles;

• Defines relationship between the state and people;
• Establishes the structure, procedures, power and duties of the government;
• Validates ordinary law
Con’t
• Written or unwritten;
• High degree of entrenchment;
• Rests on acceptance of the people

• Intra vires: “within the powers” given to the government by the

constitution;
• Ultra vires: “beyond the powers”
The United States Constitution, Preamble
• “We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.”
中華人民共和國憲法（ 1982 ）序言
• 一九一一年孫中山先生領導的辛亥革命﹐廢除了封建帝制﹐創立了中華民國。
但是﹐中國人民反對帝國主義和封建主義的歷史任務還沒有完成。
• 一九四九年﹐以毛澤東主席為領袖的中國共產黨領導中國各族人民﹐在經歷
了長期的艱難曲折的武裝斗爭和其他形式的斗爭以後﹐終於推翻了帝國主義、
封建 主義和官僚資本主義的統治﹐取得了新民主主義革命的偉大勝利﹐建
立了中華人民共和國。從此﹐中國人民掌握了國家的權力﹐成為國家的主人。
Con’t
• 中華人民共和國成立以後﹐我國社會逐步實現了由新民主主義到社會主義的
過渡。生產資料私有制的社會主義改造已經完成﹐人剝削人的制度已經消
滅﹐社會主義制度已經確立。工人階級領導的、以工農聯盟為基礎的人民民
主專政﹐實質上即無產階級專政﹐得到鞏固和發展。中國人民和中國人民解
放軍戰勝了帝國主義、霸權主 義的侵略、破壞和武裝挑釁﹐維護了國家的
獨立和安全﹐增強了國防。經濟建設取得了重大的成就﹐獨立的、比較完整
的社會主義工業體系已經基本形成﹐農業生產 顯著提高。教育、科學、文
化等事業有了很大的發展﹐社會主義思想教育取得了明顯的成效。廣大人民
的生活有了較大的改善。
Con’t
• 在我國﹐剝削階級作為階級已經消滅﹐但是階級斗爭還將在一定範圍內長期
存在。中國人民對敵視和破壞我國社會主義制度的國內外的敵對勢力和敵對
分子﹐必須進行斗爭。
• 台灣是中華人民共和國的神聖領土的一部份。完成統一祖國的大業是包括台
灣同胞在內的全中國人民的神聖職責。
中華民國憲法（ 1947 ）前言
• 中華民國國民大會受全體國民之付託，依據　孫中山先生創立中
華民國之遺教，
為鞏固國權，保障民權，奠定社會安寧，增進人民福利，制定本
憲法，頒行全國，永矢咸遵。
The Rule of Law?

鏗鏘集：天秤上的法
治， 2015-10-04
The Rule of Law
The Magna Carta 1215 (The Great Charter):

• 39. “No free man shall be seized or imprisoned or stripped of his rights or
possessions, or unlawed or exiled, or deprived of his standing in any other way, or
will we proceed with force against him, or send others to do so, except by the
lawful judgment of his equals or by the law of the land.”
• 40. “To no one will we sell, to no one deny or delay right or justice.”
Con’t
1. Thomas Paine:

• “For as in absolute governments the king is law, so in free countries

the law ought to be king; and there ought to be no other.” (Common
Sense, 1776)

• Principles:
• Nullum crimen, nulla poena sine praevia lege poenali – No ex post facto
laws;
• Presumption of innocence – All individuals are "presumed innocent until
proven otherwise“;
• Legal equality – All individuals are given the same rights;
• Habeas corpus ad subjiciendum – “You must have the body to be
subjected (to examination)". A person who is detained has the right to be
told what crimes he or she is accused of, and to request that his or her
custody be reviewed by judicial authority. Persons unlawfully imprisoned
have to be freed.
Con’t
2. Albert Venn Dicey:

• Three principles:
• The absolute supremacy of regular law as opposed to the influence of arbitrary
power;
• Equality before the law, “the equal subjection of all classes to the ordinary law of
the land administered by the ordinary Law Courts.”
• “[T]he constitution is the result of the ordinary law of the land” and that “the law
of the constitution … [is] not the source but the consequence of the rights of
individuals.”
Con’t
3. Friedrich Hayek:

• The rule of law is a meta-legal doctrine or a political ideal which serves

to impose a limitation on all legislation (Loughlin, 1992, 91-92).

• Principles:
• Laws be general and abstract rules, that is, that they are addressed to all as
contrasted to specific commands to specific persons;
• Law is known and certain;
• The general rules are complemented by the equality of all before the law;
• Written constitution to ensure that the power of the state could not be
exercised in such a way as to compromise individual liberty;
• The separation of legislative, executive and judicial power, bicameral
legislature.
Con’t
4. Tom Bingham:

• Principles:
• The accessibility of the law;
• Law not discretion;
• Equality before the law;
• The exercise of power (within the legal
framework);
• Human rights;
• Fair trial;
• The rule of law in the international legal
order
Con’t
• “Thin” or “thick” rule of law
• Formalist or ‘thin’: under these theories the concept requires that laws must merely
comply with certain formal rules in order to be valid, irrespective of their content; a
repressive and murderous regime could meet the rule of law under this definition
• Substantive or ‘thick’: this version of the rule of law judges the content as well as the
form of ‘law’, requiring substantive rights to be recognized (Bingham, Street, 2013,
13).
Think: Does the occupy movement undermine Hong
Kong’s rule of law?
Compare:

Speech of Rimsky Yuen, Secretary for Justice at the

Ceremonial Opening of the Legal Year 2015, 12 January
2015.

Speech of Paul Shieh Wing Tai, Chairman of the Hong Kong

Bar Association at the Ceremonial Opening of the Legal
Year 2015, 12 January 2015.
The Rule of Law and Judicial Review
1. Judicial review: a legal process by which individuals can challenge
decisions made by public authorities on the basis that they are
unlawful.
• Substantive
• Procedural

2. Judicial review can be “characterized as the rule of law in action”

(Judicial Review: Proposals for further reform consultation paper,
Ministry of Justice, UK, September 2013, paragraph 21).
Think: Is the judicial review system being abused in Hong Kong?
Compare:

Henry Litton, retired Court of Final Appeal Judge:

“Judicial review is not available for challenges to government
policy,” Litton said: “That is a fundamental rule in the separation
of powers. The court is concerned with law, not policy… [it] is the
place for the vindication of legal rights [and] redress for wrongs
done. It is not a debating hall or a classroom.” (Hong Kong Free
Press, 3 December 2015)

Andrew Li Kwok Nang, retired Chief Justice:

Judicial reviews by an independent judiciary as “fundamental to
the rule of law” (SCMP, 14 December 2015; see Mingpao Daily
News, 13 December 2015)
Why the Judiciary?
• Democracy vs. professional judgment