The constitutions and constitutional practice of states in East and Southeast Asia provide worthwhile case studies for scholars of comparative constitutional law, constitutional theory and politics. This paper seeks to provide a conceptual framework for such comparative studies, and discusses some key components of the existing literature on this subject. It is hoped that the paper can serve as a point of departure or guide for further research into the topic. East Asia is a region characterized by great ethnic, cultural, religious and linguistic diversities, different levels of economic development, and large variations in the types of political regimes that have existed or are now prevalent. This is highly relevant to the study of Asian constitutionalism, as constitutional law is bound up with history and politics. All states in East Asia have adopted written constitutions in modern times, but the nature, purposes and functions of these constitutions vary according to the nature and character of the political regimes in which they exist. This paper will therefore begin with a discussion of the types of regimes that have existed in modern East Asia, before proceeding to investigate the relationship between constitutions and regime types. ; postprint
Since 1997, the former British colony of Hong Kong has practiced autonomy as a 'Special Administrative Region' (SAR) of the People's Republic of China (PRC) under a constitutional arrangement known as 'One Country, Two Systems' (OCTS). OCTS was first stipulated in the Sino-British Joint Declaration, a treaty signed in 1984 whereby Britain agreed to return Hong Kong to China in 1997. The Hong Kong Basic Law enacted by the Chinese National People's Congress (NPC) in 1990, often known as Hong Kong's 'mini-constitution', constitutionalizes OCTS, grants to the Hong Kong SAR a 'high degree of autonomy', and provides for the progressive democratization of Hong Kong. The political system that has existed in post-1997 has been described as a 'semi-democracy'. The Basic Law itself stipulates that the ultimate destination of the evolution of Hong Kong's political system is the election of the Chief Executive of the Hong Kong SAR by universal suffrage. However, this is 'a democracy that might never come.' 'An authoritarian regime which has pre-committed itself to democracy is an inherently unstable regime, because it will be taken to task to deliver.' Since 2003, a democracy movement has developed in Hong Kong that struggles for the speedy introduction of such universal suffrage. In 2007, the Chinese government announced that such universal suffrage may be introduced in 2017. Since early 2013, a public debate has unfolded in Hong Kong on what should be the electoral system for this purpose. Pro-democracy and activists were concerned that the electoral system, particularly the nomination process for candidates, would be such that only persons approved or considered acceptable by the Chinese government could stand as candidates, and that the election would not be conducted in accordance with international standards of democracy and universal suffrage. They call this 'fake universal suffrage', and they argue that China must grant Hong Kong 'genuine universal suffrage'. The debate on universal suffrage in Hong Kong entered a new phase after 31 August 2014, when the NPC Standing Committee made a Decision on electoral reforms in Hong Kong. The model for universal suffrage stipulated in the Decision was immediately condemned by the pan-democrats as failing to meet international standards on what constitutes genuine universal suffrage, and as imposing unreasonable restrictions on the right to stand as candidates in the election. They vowed to vote against the proposed model when it comes before the Legislative Council in 2015. Under the Basic Law, any constitutional reform such as the election of the Chief Executive by universal suffrage can only be introduced by a two-thirds majority in the Hong Kong legislature, in which the 'pan-democrats' currently occupy more than one-third of the seats. The struggle for the realization of universal suffrage in the election of the Chief Executive in Hong Kong in 2017 provides a good case study of constitutional politics in a sub-national political community exercising autonomy and seeking to introduce constitutional reform and democratization. It is also particularly interesting because Hong Kong is an SAR of China, the major Communist Party-ruled polity in the contemporary world, while the aspirations of Hong Kong's democracy movement are towards Western-style liberal constitutional democracy. This paper seeks to tell this story of Hong Kong's quest for democratization, focusing particularly on the law and politics of Hong Kong's constitutional reform. It suggests that the struggle for universal suffrage in the election of the Chief Executive of the HKSAR in 2017 and the obstacles it has faced reveal the underlying tensions behind, and the contradictions inherent in, the concept and practice of 'One Country, Two Systems', particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of pan-democrats and their supporters in Hong Kong. This paper consists of the following parts. Part I examines the constitutional and legal provisions governing Hong Kong's political system and its development. Part II reviews briefly the movements towards democratization that have taken place since the establishment of the Hong Kong Special Administrative Region in 1997. Part III consider developments since early 2013, when a social movement known as the 'Occupy Central' campaign developed to struggle for the realization of genuine universal suffrage in the election of the Chief Executive of Hong Kong. The paper will focus particularly on the positions of the democracy activists in Hong Kong, as well as the stance of the Central Government in Beijing. Finally, Part IV will conclude by reflecting on the project of Hong Kong's democratization under 'One Country, Two Systems' in the light of the NPCSC Decision of 31 August 2014. ; preprint
Conference Theme: Constitutional Challenges: Global and Local ; Workshop 2: Sub-national constitutions in federal and quasi-federal constitutional states ; published_or_final_version
The phrase "constitutions without constitutionalism" has been used by various authors to describe the state of constitutional law in Africa, the Middle East and Latin America at various points in time. For significant periods, the constitutional circumstances of many Asian countries may also be aptly summarised by "constitutions without constitutionalism". As it is by no means obvious or likely that a nation's constitution will be successfully put into practice after it has been enacted, it is indeed right and appropriate to talk of constitutionalism as an "achievement". In the early twenty-first century, constitutionalism is still a work in progress in many parts of the world, particularly in Asia, Africa and Latin America. Many Third World countries have still not grown out of the syndrome of "constitutions without constitutionalism"; the "achievement" of constitutionalism is yet to come. Just as Fuller speaks of the project of legality or Rule of Law as being governed by a "morality of aspiration", which means whether the ideal of the Rule of Law is realised in a particular country or legal system is a matter of degree, and the practitioner of the morality of aspiration should try her best to achieve excellence in, or a higher degree of fulfillment of, this ideal, so this "morality of aspiration" is also applicable to the practice of constitutionalism. The achievement of constitutionalism in a particular nation-state is also a matter of degree. The book project of which this paper forms a part attempts to inquire into the state of constitutionalism in Asia in the early twenty-first century, or the extent or degree to which constitutionalism has been "achieved" in this part of the world at the present time. Although constitutionalism as a theory and practice of government and law first originated in Western Europe and North America, there is by now considerable evidence of its positive reception in and successful "transplant" to a significant number of Asian countries. As I wrote previously, "A macrohistorical perspective, covering developments in Asia since the late nineteenth century, suggests that constitutionalism has broadened and deepened its reach, significantly, over the course of time." The experience of different Asian countries in this regard provides useful and fascinating case studies of what Grimm calls the "achievement of constitutionalism". This paper consists of two main parts. Part I attempts to develop a conceptual framework for the purpose of studying, analyzing and evaluating constitutional, political and legal developments in countries on their path towards the "achievement of constitutionalism". Part II discusses the experience of Asian countries and jurisdictions from a historical and comparative perspective, utilising the conceptual apparatus developed in Part I. ; postprint
Essays in commemoration of the seventieth birthday of Professor Osanai Satoru ; Modern constitutional law has developed various means of supervising and guaranteeing the effective implementation of the constitution. The principal means of judicial control of constitutionality is judicial review of the constitutionality of legislation enacted by Parliament, or constitutional judicial review. This has become a dominant feature of modern constitutionalism, and recent decades have seen a global expansion of such judicial review mechanisms. This article considers the phenomenon and institution of constitutional judicial review from historical and comparative perspectives. The different models, structures and forms of constitutional judicial review are discussed with reference to the historical contexts in which they have evolved, their modes of operation and their underlying rationales. The possible tension between constitutional judicial review and democracy is also considered. ; preprint
One of the issues raised by the Vallejos case (the Foreign Domestic Helpers Case) is to what extent, if any, the fundamental legal issues which the court was called upon to decide in this case had already been dealt with by the National People's Congress Standing Committee when it issued its first Interpretation of the Basic Law in June 1999. This article discusses the relevance to this case of the 1999 Interpretation and the Preparatory Committee's Opinion which it referred to. It suggests that these documents enable us to have a better and fuller understanding of the legislative intent behind Art 24(2) of the Basic Law. Such legislative intent is consistent with, and converges with, the common understanding of the Chinese and British Governments of the intent behind the relevant provisions in the Sino-British Joint Declaration of 1984 that correspond to Art 24(2). The intent was to set out the basic principles governing permanent resident status and right of abode in the HKSAR, and to confer on the legislature of the HKSAR a broad power and a wide margin of appreciation in implementing and elaborating such basic principles by more detailed legislative rules. ; postprint
The concept of 'datong' in Chinese philosophy was developed more than two millennia ago in the Confucian classics. It has been translated as 'Great Unity', 'Great Community', 'Great Universality', 'Great Similarity', 'Grand Harmony', etc. In the 'Liyun' section of Liji the Book of Rites, the concept of 'datong' was first introduced. In the early twentieth century, the great Chinese thinker and reformer Kang Youwei wrote a book entitled Datong shu (Book on the Great Community) in which he put forward an original and radical interpretation of 'datong'. This paper will analyze the concept of 'datong' in Liyun and in Kang's Datong shu, and suggest that the concept is an expression of the idea of the common good in traditional Chinese social and political philosophy. It will examine and reflect on Kang's Datong shu and the elements of Confucianism, Buddhism, liberalism, utilitarianism, utopianism and socialism/communism that can be found in the book. It will also show that the ideology currently propounded by the Chinese Communist Party, including the ideas of the 'preliminary stage of socialism' and the 'xiaokang society', may be better understood in the light of the concept of 'datong' in Chinese philosophy. ; postprint
Constitutionalism as a school of thought and as a set of political and legal practices was originally a product of modern Western civilization. In the course of the last two centuries, it has spread to all corners of the earth. This paper examines and reflects on the transplant of Western models of constitutionalism to Asia, focusing on several case stud… ; postprint
Both Hong Kong and Taiwan have been major sites of constitutional experimentation in East Asia in the last two decades. Constitutionalism is characterised by the rule of law and of the constitution, separation of powers and judicial independence, and the constitutional protection of human rights. It subjects political power to legal control, and enables peaceful transfer of political power in accordance with electoral rules of the game. Both Hong Kong and Taiwan have made significant progress in developing constitutionalism since the 1980s. This article compares the records of these two 'islands' (territories) in this regard, and explore the future of a constitutionalism rooted in Chinese culture and society. It concludes that the constitutional projects in both Hong Kong and Taiwan are still works in progress that await completion. ; published_or_final_version
The Basic Law of the Hong Kong Special Administrative Region is a unique legal product of the concept and practice of 'one country, two systems'. It represents an organic link between the socialist legal system in mainland China and the common law system in Hong Kong. The principles governing the interpretation of the Basic Law are primarily those developed by the common law tradition. However, in interpreting the Basic Law, it may also be necessary to take into account the peculiar features of the systems of constitutional and legislative interpretation in mainland China. This article examines the experience of constitutional interpretation in the common law world, particularly the United States with its relatively long tradition of the interpretation of a written constitution. It also introduces the characteristics of constitutional and legislative interpretation in the legal system of contemporary China. The article then reviews Hong Kong's experience in constitutional interpretation, both in the colonial era and under the new constitutional regime governed by the Basic Law. It suggests that there is much that Hong Kong can learn from comparative studies. In the author's view, Hong Kong's journey in constitutional interpretation has only just begun. ; published_or_final_version
For many decades, global discourse about legal development has been dominated by Western notions of rule of law and liberal democracy. The gradual shift of economic power from the West to North East Asia over the last 40 years, and to China more recently, presents a new and distinctive challenge to Western domination over global development discourse. To explore this phenomenon, we argue that it is necessary to abandon, or at least suspend, the belief that 'global culture,' which developed out of the European Enlightenment and diffused worldwide through imperialism and imitation, is an irresistible socializing force. We need to consider the possibility that 'global culture,' which now includes North East Asian influences, does not invariably produce local variations of Western or North East Asian legal development in socialist Asia. These models are important but may not be the only reference points for legal development elsewhere in Asia. ; preprint
