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Hong Kong and Macau’s legal systems were based on that of Britain and Portugal respectively before their handover to China. In 1997 and 1999 respectively, new constitutional instruments known as Basic Laws drafted and adopted by the Chinese Central Authorities came into force in Hong Kong and Macau. The texts of the two Basic Laws, both enacted to implement the Chinese project of “One Country, Two Systems”, were very similar.
After the handover, courts in both jurisdictions have engaged in constitutional review and have developed some kind of proportionality analysis in evaluating the validity of legislative and administrative acts against the provisions of the Basic Law. This chapter explores the ‘visible’ and ‘invisible’ bases of constitutional judicial review in post-colonial Hong Kong and Macau. It compares the practices of such review in these two Special Administrative Regions of China, and demonstrates that the differences are largely attributable to the ‘invisible’, rather than the ‘visible’, basis of constitutional review, and that such ‘invisible’ basis is to a significant extent determined by the different legal traditions of the two former colonies, and probably to some extent also shaped by the values of and choices made by the judicial elites of the two territories.
The founding of a constitutional court is often an indication of a chosen path of constitutionalism and democracy. It is no coincidence that most of the constitutional courts in East and Southeast Asia were established at the same time as the transition of the countries concerned from authoritarianism to liberal constitutional democracy. This book is the first to provide systematic narratives and analysis of Asian experiences of constitutional courts and related developments, and to introduce comparative, historical and theoretical perspectives on these experiences, as well as debates on the relevant issues in countries that do not as yet have constitutional courts. This volume makes a significant contribution to the systematic and comparative study of constitutional courts, constitutional adjudication and constitutional developments in East and Southeast Asia and beyond.
Examining developments in the first decade of the twenty-first century, this authoritative collection of essays studies the evolving practice of constitutional law and constitutionalism in Asia. It provides a comprehensive overview of the diverse constitutional issues and developments in sixteen East, Southeast and South Asian countries. It also discusses the types of constitutionalism that exist and the general trends in constitutional developments whilst offering comparative, historical and analytical perspectives on Asian constitutionalism. Written by leading scholars in the field, this book will be of great interest to students and scholars alike.