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一、香港殖民地时期的司法审查制度(一)《皇室训令》与司法审查司法审查的范围与一国宪法架构中的权力分配密切相关。在英国,司法审查主要是集中于审查行政部门之行为是否合法和恰当。由于英国没有成文宪法,而其议会是至高无上的,故英国国内的法院不能对议会法令的合法性有任何质疑。然而在美国,审查法律的合宪性,则是司法审查的重要部分。虽然香港在九七回归之前是英国的殖民地,但她的宪法架构却和英国有所不同。其主要区别是,香港有成文的宪法性文件,即《皇室训令》和《英皇制诰》。它们是由英皇根据当时政府的指示制定,并经
I. The Judicial Review System in Hong Kong’s Colonial Period (I) The scope of the Judicial Review of the Royal Instructions and judicial review is closely related to the distribution of power in the constitutional structure of a country. In the UK, the main focus of judicial review is on the legality and adequacy of the conduct of the executive branch. Since Britain does not have a written constitution and its parliaments are paramount, the domestic courts in the United Kingdom can not challenge the legality of parliamentary decrees. However, in the United States, reviewing the constitutionality of law is an important part of judicial review. Although Hong Kong was a British colony before the return of 1997, her constitutional structure is different from that of Britain. The main difference is that there are written constitutional documents in Hong Kong, namely, the Royal Instructions and the Emperor System. They were set by the Emperor according to the instructions of the then government and passed through