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The Chinese University of Hong Kong

Faculty of Law

LAWS1100 – Hong Kong Constitutional Law

READING LIST & TUTORIAL QUESTION

WEEK 1: INTRODUCTION TO CONSTITUTIONAL LAW AND CONSTITUTIONALISM

PRESCRIBED READING

Murphy, Walter F ‘Civil law, common law, and constitutional democracy’ (1991) 52 Louisiana Law
Review 91 (Part II only)

Craig, Paul ’Formal and substantive conceptions of the rule of law: an analytical framework’
(1997) Public Law 467 (Read the introduction, and the sections on Raz, Dworkin and Jowell only)

TUTORIAL QUESTION

1. Can you have a constitution, but not have constitutionalism? Why or why not?
- Hong kong has basic law which is like a mini consitution
- Have checks and balances
- Related to hk having constituionalism
- Can have a higher law that when you look at it, concentrates power on a certain
branch, authoritarian government, no separation of powers, no constitutionalism
- Having consitution and constitutionalism is interrelated but it depends on what
the constitution says
- A higher law may not be workable too
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1. Rule of Law
- Formal:
 Raz
 The law should be clear, accessible, stable, propesctive
 The government was to pass a law this Friday, making teaching
constitutional law an offence, it should only apply to tutorial next week
not this one
 Law changes constantly
 Context of law not relevant, as long as it fulfils the requirements above,
the rule of law will be powerful
 Legalising marijuana? Not as dangerous as other drugs
 If substantive  will spend a lot of time on moral debates
 Distinguish between one authoritarian system and another
 Will argue narrower the better

- Substantive:
 Equality
 Basic rights are respected
 Proportionality
 Duty to give reason
 If a law discriminates disadvantages ppl, substantivists will say the law
is void
 Serious crimes attract serious punishment
 Support individuals rather than focus
 Jowell: focuses on procedural justice

2. Constituionalism
- Want to see a higher law
- Can use traditions of common law or case law, codified or uncodified (e.g.
USA and HK)
- Don’t have a single text but multiple texts make a higher law, is more clear
and accessible
- Separation of powers, prevent over-concentration of powers on a certain
branch, check and balances
- Judicial review, challenge laws/policies made, checks s.o.p
 Very important mechanism to uphold separation of powers
- Many consitutions recognizes and protects rights of individuals
 Ideally embedded in our higher law
- Institutional design, electoral procedure  rule of law
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- Representative government
- Strong rule of law/ judicial review process decides election system
- Judicial review strengthens/weakens rule of law
- Judicial review tends to support rights of individuals
- Murphy
 Democratic theory:
 Having a accountable government is to have elections
 Minorities may get left out, as the government represents the majority
 Elections by definition benefits the majority
 Your way of life  makes you the minority in that society, very
vulnerable
 Majoritarianism
 Consitutional democracy:
 Want a duty to give reasons
 Should enjoy equal rights, elections are important
 How to design elections?
 Checks and balances, they think judicial review is very very important
as it upholds separation of powers
 If someone is in power, may abuse their power, checks and balances
very important to prevent abuse
 Need to understand the strengths and weaknesses of the constitution