What is constitution?

Study of the distribution of power

o Power between the government and the individual
rights
o Power between HK and NPC
HKs autonomy
o Rules about how a government should be structured
o What kind of limits are imposed on the government e.g. separation of
powers: each branch has its own function
Makes, interprets and implement the law
No single branch will possess the sole power
All the questions are tied to constitutional interpretation
A higher and fundamental law
o higher superior to other law
o fundamental ultimate source of legal authority of the law
o art 43
o art 48 lists the power of the chief executive
case law: the power to appoint certain government officials; is the
power to fire the officials also granted?
Purposive interpretation: why this provision exists
Literal approach: what the language reflects
What is constitutionalism?
If the set of rules do not impose effective limitation on the government not
constitutionalism
Limitations have to be entrenched in the constitution
Comparison
Thick vs Thin
o Thick there are effective limits, the limit has been entrenched, it cannot
be arbitrarily removed by power
o Thin the government operates according to the constitution but may or
may not have effective ways to limit the government
Politically neutral vs politically loaded
Legal vs non-legal rules political convention
o Royal assent
o The convention becomes so established that it becomes part of the law
Written rules vs conventions
o Written constitutional
there is a central constitutional document e.g. HK, US Canada
Clarity
Difficulty of amending it
o Conventions
Rules that are not embodied in a single written document
formed in the judicial reviews, relationship between the legislature
and judiciary;
UK based on statues, case law and the court

E.g. relationship between executive and legislature is

embodied in the doctrine of judicial review
Not all norms form part of the constitutional structure not purely
social rule, they do have legal force
Even in the UK mixture of both written and unwritten
constitution, ECHR incorporated into the UK law
Greater flexibility and therefore less clarity can always
distinguish the case
Monarchical vs republican (like in the US)
Unitary vs federal (power shared between the national government and the local
entity)
o Federal system: there is a distribution of power between the nations and
various state governments. In theory, there are certain things within the
state government e.g. traffic control, marriage, enforcing equality
provisions, taxation

Constitutional formulation (HK)

One country, two system in an attempt to unify Taiwan
Socialist system and the capitalist system
Living constitution vs originalist
Originalist approach understand in terms of what the drafter intended how
the people at time of drafting would have understood
o If fixed, how would a society grow: absurd to interpret the bL only in light
of that particular moment
Living constitution meaning of the constitution can change over time
o Question of a more effective limit if cons can be re-interpreted in the
presence of changing circumstances, limits posed on government may
become ineffective
Chong Fung Yuen
Facts
o Parents come through two-way permits
o Chinese residents born before or after the establishment of HKSAR can
have the right of abode
o Immigration ordinance requires that one of the parents must be HK
permanent resident
Legal question
o Interpretation of art 24 of the basic law
o Does the court of final appeal have the right to make an appeal to the
NPCSC the NPCSC has the final say?
o Art 158 (3)
Art 24 an excluded provision? The court says no
Prescribes one category of permanent residents who are
entitled to the right of abode
Within the HKSARs autonomy and is not an excluded
provisions

How to determine whether it is an excluded provision:

Whether the interpretation would have substantive effect on
affairs of central government responsibility or HK-China
relationship
How far do you delineate the effect
The court adopted the common law approach language and
context of the rest of art 24 provisions that explicitly refer to the
parents
Immigration ordinance goes beyond what is required
inconsistent with the basic law
Problem influx of people, consuming resources
Solution
o Reconsideration?
Procedural hurdles: the court is very clear in the case, no grounds
for reconsideration
o Administrative measures
Cons: short-sighted, effect of shutting people out but HK needs
more young people
o Legislative amendment adding a section to BL: e.g. 7 year restriction
Some parents do not want the permanent residency
Fundamental right of resident art 23: first right is the right of
abode too harsh if they have good reasons not to be in HK?