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Summary 2. Development of Constitutionalism in Hong Kong
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2. DEVELOPMENT OF CONSTITUTIONALISM & CONSTITUTIONALLAW IN HKSAR
READING 1: THE DEVELOPMENT OF CONSTITUTIONALISM IN HONG KONG
0. CONSTITUTIONALISM
Stripping the concept down to its bare bones, constitutionalism refers to the regulation of a government’s powers. Its
ultimate goal is to protect the individual rights and freedoms of its population. In its widest sense, the concept includes
more than just the legal code name as the ‘constitution’ – it refers also to the conventions and practices of the
constitution, applicable legislation, and judicial decisions.
0.1 ASPECTS OF CONSTITUTIONALISM
1. The guiding principle of many constitutions is the rule of law meaning that governments may only exercise those
powers authorised by the constitution and the law in the manner so provided by them
2. Constitutions allow a certain degree of decentralisation of governmental powers to local levels. Thus local
governments are often given autonomy to decide matters of local interest with only a limited degree of interference
from central government.
3. Constitutions separate, balance and check the powers of various branches of government including the executive,
legislative and judicial authorities
4. Constitutions establish a democratic electoral system by periodically empowering the population to choose
representatives to run their government, the leaders of which are accordingly accountable to the people
5. Fully developed constitutions ideally contain an in-built human rights protection system which interact with other
constitutional arrangements to achieve the ultimate goal of any constitution; to protect human rights of its people.
1. THE FIRST STAGE: CONSTITUTIONALISATION OF COLONISATION (1840S-1960S)
Britain enacted HK’s constitution with little participation from the colony itself so it is probably true to say that colonial
Hong Kong had a very low degree of constitutionalisation. Constitutionalisation indicates the degree to which the
government of a state is regulated by its constitution.
Increasing Constitutionalisation
No Structure of Process for choosing Aspirations + Bill of Rights + Process
constitutions state; powers government + related rights for electing government +
& functions + structure & powers Structure & Powers
The major reason for this state of affairs can be traced back to Britains original motives for colonising Hong Kong: (a) to
use it as a base to conduct business; and (b) to advance its own interests in the region, particularly in China. Thus, the
immediate objective of colonial rule was merely to maintain order. There was simply no need to regulate governmental
powers because the constitution’s purpose had less to do with protecting the rights of its inhabitants than providing a
framework which would allow the British a maximum degree of freedom to rule. Indeed, the lack of any trace of
constitutionalism during Britain’s rule indicates that it was rarely given serious consideration in this era.
1.1 RULE OF LAW
Structurally, Hong Kong had all the basic requirements for the rule of law to flourish. Though the constitution was brief,
the British legal system, including its judicial system, common law, statutes, and practices were all transplanted to Hong
Kong to supplement its meagre provisions. Thus, it was not for lack of formal institutions or legal instruments that the
rule of law was not firmly established in Hong Kong. There are several reasons that explain why the rule of law was so
low on the political agenda:
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, 1) The main objective of the colonial government were to maintain order and to protect British interests in the region,
the rule of law was regarded as only one of several possible means to achieve these ends.
2) The laws were usually so drafted that vast discretionary or even draconian powers were granted to the government.
Rather than limiting its powers, law was seen as a tool of domination or control It may have been ruled by law but it
was surely not the rule of law.
3) Law did not command high respect in the local community as corruption was rife within the government and
especially amongst law enforcement agencies. People did not take the law literally or seriously, and in many dealings
with the colonial government, the determining factor was generally not the law itself but whether citizens have
sufficient money to bribe officials.
1.2 GOVERNMENT STRUCTURE (FEATURES OF LEGAL SYSTEM)
Typical of all other British colonies, the colonial government in Hong Kong was directly subordinate to the government
in London, and came under its close supervision. This government appointed all Hong Kong’s governors and its main
officials. Local autonomy was limited to the appointment of some local Chinese residents to the Executive Council and
the Legislative Council (LegCo). Even so, most of these appointees represented interests similar to that of the
administration. On the other hand, as regards purely local matters, the colonial government enjoyed de facto autonomy
and could make decisions independently although the central government retained the necessary powers to intervene.
However, as all the senior officials were from the United Kingdom, it was unusual to find a case where these interests did
not coincide.
The terms ‘executive-led form of government’ or ‘gubernatorial form of government’ have both been used to describe
the nature of colonial rule in Hong Kong, where governmental powers were primarily vested in the governor. Thus, the
governor as head of the executive branch dominated the colonial government system, a system that was also typical of
most other British colonies. Even though a LegCo existed, it had little power to make the executive branch accountable,
but was considered merely as an advisory body to the governor. Furthermore, members of Legislative Council were either
government officials or persons appointed by the governor. The governor was also president of Legislative Council. Thus,
even if Legislative Council had the necessary powers, it was unlikely to have used these powers to challenge decisions of
the executive authority.
Another feature of the colonial government concerns the role of its civil servants. Senior civil servants were not only
responsible for implementing policies but also for formulating policies. And again, these people were mainly recruited
from the UK; for a long time, local Chinese were actually excluded for the core of government. Moreover, as civil servants,
these senior officials were not politically accountable for their decisions.
There was, however, one are in which Hong Kong was allowed almost total independence. The colonial courts and the
Judicial Committee of the Privy Council (Hong Kong’s Court of Final Appeal in London) were able to maintain their
independence from both the executive branch of the colonial government and even the British government. It is perhaps
unfortunate that they seldom exercise their review powers to correct the administration’s mistakes – they, like their
English counterparts, took a rather restrictive approach towards reviewing official decisions
1.3 HUMAN RIGHTS
Human rights were not protected constitutionally in the colonial administration at all; on the contrary, its primary
objective was the maintenance of order and this was especially true after the 1960’s riot when legislation was enacted
to actually tighten control of the populace. Nevertheless, local inhabitants still enjoyed a limited degree of protection
under the common law.
1.4 SUMMARY
Ø Low degree of constitutionalisation due to Britain’s motives for Hong Kong
Ø Rule of law was brief due to three reasons: Britain’s motives for Hong Kong, the drafting of laws and the public’s
perception of the law
Ø Executive-led government with exclusion of Chinese.
Ø Human rights were not protected
Ø No elections
Ø Courts were independent
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