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11 Hong Kong L.J. 3 (1981)
Legal Limitations upon the Legislative Competence of the Hong Kong Legislature

handle is hein.journals/honkon11 and id is 27 raw text is: Legal Limitations upon the Legislative Competence of the Hong Kong Legislature Peter Wesley-Smith* IN THE halcyon days of the British raj, when the empire was seen as one vast coherent system of mother country and colonies organised for the economic, social and political benefit of the realm, imperial legal control over colonial legislative power was inevitable. Colonies were dependent territories with a subordinate role to play, a status inconsistent with claims to colonial legislative omnipotence. Thus various devices for imperial supervision of law-making by colonial assemblies were built into the system. In the case of Hong Kong, these devices still exist. Since the demise of a functioning British empire they have become somewhat anomalous, and in practice they have rarely seemed of much importance. But their contribution to the development of the local legal system has been considerable, and even now they are not irrelevant to the exercise of legislative power by the government. The constitutional theory which restricts legislative competence in Hong Kong is as valid today as it was in the nineteenth century. In this essay it is intended to examine the theory in relation to the few local cases where issues of legislative power have arisen. The perspective adopted is strictly legal: we are concerned here with a branch of the ultra vires doctrine. Ceded colony What is known as the Crown Colony of Hong Kong was acquired from China in three stages. The Treaty of Nanking 1842 provided for the cession in perpetuity of Hong Kong Island, and the original charter erected the island 'and its dependencies' into a colony of Her Brittanic Majesty. In 1860, by the first Convention of Peking, a 'perpetual lease' of Kowloon and Stone- cutters Island, which had been granted a few months earlier to Sir Harry Parkes on behalf of the British Crown, was cancelled and replaced by a cession. This new area was incorporated into the existing colony by Order in Council. The final addition to colonial territory at Hong Kong was achieved by the second Convention of Peking 1898 and two consequent Orders in BA, LLB (Adel), PhD (HK); Senior Lecturer in Law, University of Hong Kong. The author is grateful to Professor John Rear and Mr Bernard Downey for their comments on an earlier draft of this article.

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