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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