Constitutional Review in Hong Kong under the ‘One Country, Two Systems’ Framework: An Inquiry into its Establishment, Justification and Scope

Abstract

Abstract
This thesis enquires into the establishment, justification and scope of constitutional review in Hong Kong against the unique constitutional order of "One Country, Two Systems" established in Hong Kong after its return to China in 1997. Constitutional review had emerged in Hong Kong in the pre-handover judicial enforcement of the Bill of Rights. But its establishment was in the CFA's decision in Ng Ka Ling. The central question concerning constitutional review in Hong Kong is that the text of the Basic Law does not expressly provide for this authority.
In light of the theories on the law of constitution and constitutional review advocated by Kelsen, Dworkin and Cappelletti, this thesis argues that the higher law status of the Basic Law , understood in both positive and normative senses, makes constitutional review not only scientifically necessary but morally desirable. Further, it is argued that given the common law legal system and the checks and balances in the political structure of present Hong Kong, it is most appropriate for the courts to exercise the power of constitutional review.
However, constitutional review under the Basic Law is an intra-jurisdictional issue, involving not only the operation of the Hong Kong legal system, but also the legal system in mainland China. The Hong Kong courts' jurisdiction of constitutional review is therefore a limited one. In that sense and to that extent, there is what might be called the 'counter-Beijing difficulty' in the Hong Kong courts' exercise of the power of constitutional review. Nonetheless, the power of constitutional review has made the CFA a powerful court. It is the unwritten Basic Law formulated by the courts that is shaping OCTS. It is argued that to maintain the workability of the OCTS framework, due judicial restraint seems sensible and desirable.