Constitutions and

Constitutionalism

Cora Chan
Professor of Law
The University of Hong Kong
September 2024
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 Outline
• Definitions and concepts
• Forms of constitutions
• Origins and amendments of constitutions
• Content and purpose of constitutions
• Nature of the Basic Law
• Purpose of the Basic Law
• Questions to ponder on

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 Definitions and concepts
• Distinctions in the concept of constitutions
• Distinction 1: politically neutral vs politically
loaded definition
• Politically neutral definition
– A set of rules that creates, structures and defines
governmental power
– Neutral since not dictate how the state must be
organised
– All states including dictatorships qualify as
constitutional states in this sense
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 Definitions and concepts
• Politically neutral
definition (cont.)
– Features of Socialist
constitutions:
• monopoly of party
leadership
• instrumentality of
law
• propaganda of
ideology
• gap between Kim Jong Un, supreme leader of
constitution on North Korea
paper and
constitution in
practice
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 Definitions and concepts
• Politically loaded definition:
– One possible (albeit dominant) understanding
defines the constitution as rules that effectively
limit governmental power
– States without such limits are not constitutional
states
– Would exclude most Socialist constitutions

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 Definitions and concepts
• Distinction 2: “constitution as function” vs
“constitution as form”, small-c vs large-c constitution
(see Elkins, Ginsburg & Melton, The Endurance of
National Constitutions, 38)
• Constitution-as-function (small-c): the constitution
comprises elements that perform the functions of a
constitution, and can include laws of higher status,
ordinary laws, conventions, judge-made law
• Constitution-as-form (large-c): formal written legal
document(s) that purport to have higher status

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 Definitions and concepts
• This distinction is related to a third distinction:
constitution on paper vs constitution in practice
• “A large-c constitution is a legal document, or set of
legal documents, that (1) proclaims its own status as
supreme or fundamental law, (2) purports to dictate
the structure, contours, and powers of the state…. A
small-c constitution… consists of the body of rules,
practices, and understandings… that actually
determines who holds what kind of power…” (David
Law, “Constitutions” in Cane & Kritzer (eds) The
Oxford Handbook of Empirical Legal Research, 377)

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 Definitions and concepts
• Questions to ponder on:
– What does HK’s large-c constitution comprise?
– What are some examples of elements included in
HK’s small-c constitution?

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 Definitions and concepts
• Constitutionalism attained when spirit of
constitution fulfilled
• Can be understood in different senses
– Politically neutral sense: attained when state
organised in the way stipulated in the constitution
– Politically loaded sense: attained when state
power effectively limited

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 Definitions and concepts
• Strands of constitutionalism in the loaded
sense
– Liberal constitutionalism (characterized by
democratic elections, separation of powers,
human rights, judicial review)
– Theocratic constitutionalism (see Thio Li-Ann,
“Constitutionalism in illiberal polities”)
– Communitarian constitutionalism (see Thio Li-
Ann, above)
– Socialist constitutionalism (see e.g. Socialist Law in
Socialist East Asia)
– Authoritarian constitutionalism (see Tushnet,
“Authoritarian constitutionalism”) 10
 Definitions and concepts
• Mixed constitutionalism – admixture of two or more
strands of constitutionalisms
• Hybrid regimes – regimes that are neither fully liberal
democratic nor fully authoritarian (see e.g. Levitsky and
Way, Competitive Authoritarianism; Eric Ip, Hybrid
Constitutionalism)
– “Semi-liberal constitutional system” defined as a “system that
meets two conditions: first, it exhibits a simultaneous dual
normative commitment to liberal rights and principles and to
other values or interests that result in enduring and
significant restrictions on some of these rights; second, this
dual normative commitment is constitutive and is expressed
in the basic elements of the system” (Stopler, “Semi-liberal
constitutionalism”, 101) 11
 Definitions and concepts
• Questions to ponder on
– Would you characterise HK’s regime as a hybrid
regime? Does HK fit Stopler’s definition of a semi-
liberal constitutionalist regime?

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 Definitions and concepts
• National vs subnational constitutions
– Subnational constitutions and constitutionalism raise
distinct challenges (see Cora Chan, “Subnational
constitutionalism: Hong Kong” in David Law (ed)
Constitutionalism in Context)
• Delineation of competences between national and
subnational polities and institutions
• Relationship between the national constitution and
national laws, on the one hand, and the subnational
constitution, on the other
• Subnational constitutions may create or exacerbate
tensions between the subnational and national units or
between subnational units
• “Asymmetric constitutionalism” 13
 Definitions and concepts
• The practice of “one country, two systems” in
HK
– Constitutional experiment to maintain a polity that
practises a capitalist economy and common law
system from the liberal rule of law tradition, within
a socialist party state
– HK is the only example in the world of a subnational
unit that is constitutionally tasked with transitioning
to full democracy without changing the national
unit’s authoritarian character and sovereign
position
(Cora Chan, “Thirty Years from Tiananmen”, 442) 14
 Definitions and concepts
• Ways of maintaining or conceptualising the
presence of more than one strand of
constitutionalism within a nation
– Legal pluralism (see e.g. Nick Barber)
– “Dual state” (Ernst Fraenkel): a polity that contains
a bifurcation – a normative domain characterised
by rule-governance and a prerogative domain
characterised by arbitrariness; which domain a
given matter is to be handled by is determined by
the political authorities acting in the prerogative
domain
– Bifurcation in HK’s legal order? 15
 Forms of Constitutions
• Written constitutional rules may be
– codified (US) or non-codified (UK)
• HK?
– entrenched (Ireland) or ordinary law (UK)
• HK? BL 159 vs practice
– of higher status (Italy, US) or ordinary status (UK?)
• HK? BL 8, 11, 18, 160

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 Forms of Constitutions
• Elements in the small-c constitution may be
legal or non-legal
– Example of conventions in UK: the king may not
refuse royal assent to bill passed by both houses
of Parliament)
– HK?

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 Forms of Constitutions
• To effectively limit state powers, must there
be constitutional rules in particular forms?
– Do we need at least some entrenched rules in
order to effectively limit govt power?
– Can a constitution that is completely conventional
effectively limit power?

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Origins & amendments of constitutions
• “Constitutions, when they are framed and adopted,
tend to reflect the dominant beliefs and interests, or
some compromise between conflicting beliefs and
interests, which are characteristic of the society at that
time. Moreover they do not necessarily reflect political
or legal beliefs and interests only. They may embody
conclusions or compromises upon economic and social
matters which the framers of the Constitution have
wished to guarantee or to proclaim. A Constitution is
indeed the resultant of a parallelogram of forces –
political, economic, and social – which operate at the
time of its adoption.” (Wheare, Modern Constitutions,
66) 19
Origins & amendments of constitutions
• New constitutions are adopted because of the
will to have a new start, e.g.
– Colonies becoming independent
– Communities uniting together to form one state
– Defeat in war broke continuity in government
– Revolution leading to change in ideology
• What led to the adoption of the HK Basic Law?

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Origins & amendments of constitutions
• Distinguishing amendment from replacement
of constitution
– Procedure
– Content

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Origins & amendments of constitutions
• Amendment mechanisms needed because:
“[C]onstitutions ought to be sufficiently
responsive to various political, economic,
social and other future changes. Constitutions
that do not allow for such adaptations are in
peril of becoming irrelevant… Provid[es] a
peaceful method for change without recourse
to a forcible revolution… Enables the
correction of imperfections… revealed by
time.” (Roznai, Unconstitutional Constitutional
Amendments, 2017, p 4)
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Origins & amendments of constitutions
• The 1982 PRC Constitution has been amended
5 times, to provide for, inter alia:
– 1988: permitted private sector to exist; regulated
transfers of right to use of land
– 1993: “Socialist market economy” replaced
“planned economy”
– 1999: “rule of law”
– 2004: expressly recognised protection of human
rights and private property

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Origins & amendments of constitutions
• The 1982 PRC Constitution has been amended
5 times, to provide for, inter alia (cont)
– 2018:
• “The socialist system is the basic system of the
People’s Republic of China.” → “The defining
feature of socialism with Chinese
characteristics is the leadership of the
Communist Party of China”
• Abolished term limits for the President and Vice
President
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Origins & amendments of constitutions
• The phenomenon of “democratic backsliding”
(Huq & Ginsburg), “abusive constitutionalism”
(Landau) and “constitutional capture”
(Muller), “rise of populism”, “unconstitutional
constitutional amendments” (Roznai; Richard
Albert)
• De jure vs de facto amendment of BL?

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Content & purpose of constitutions
• To create state institutions and regulate
important aspects thereof (see Ahmed and
Perry, “Constitutional Statutes” 471)
• To limit governmental power
• Additional purposes served by subnational
constitutions include to preserve the
distinctiveness of a polity or group whilst
maintaining national unity

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 Content & purpose of constitutions
• Usual content of constitutions:
– History, ruling ideology and aspirations (Preamble,
BL)
– System of government (arts 1-2, ch IV)
– Central-local relationship (arts 1, 2, 5, 11, ch II)
– Govt branches, powers, functions and inter-
relationship (ch IV)
– Relationship between govt and people (arts 3, 4, 6,
ch III)
– Status of constitutional document (arts 8, 11, 18,
160)
– Interpretation and amendment (arts 158-159) 27
Content & purpose of constitutions
• Content largely shaped by history and context,
see e.g.
– South Africa (post-apartheid)
– Russia (change in ideology)
– US (independence)
– HK: theme of continuity of systems esp capitalism
(Preamble, arts 5, 6, 8, ch V). Why?

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 Content & purpose of constitutions

• In order to effectively limit state power, must a

constitution guarantee:
– Democracy? Universal suffrage?
– Genuine multi-party elections?
– Separation of powers?
– Independent judiciary empowered to strike down
govt acts and legislation?
– Protection of human rights? Particular rights?

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Content & purpose of constitutions
• Is liberal constitutionalism the only true form
of constitutionalism, and non-/il liberal
constitutionalism an oxymoron?
• To what extent does HK’s constitution impose
effective checks on govt power? How liberal is
it?

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 Nature of the Basic Law
• Significance of question
– Affects the standing and priority of the Basic Law
vis-à-vis other instruments and decisions
– Affects how its vague provisions should be
understood and applied

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 Nature of the Basic Law
“The Basic Law is not only a brainchild of an
international treaty, the Joint Declaration. It is also a
national law of the PRC and the constitution of the
HKSAR. It translates the basic policies enshrined in the
Joint Declaration into more practical terms. The
essence of these policies is that the current social,
economic and legal systems in Hong Kong will remain
unchanged for 50 years. The purpose of the Basic Law
is to ensure that these basic policies are implemented
and that there can be continued stability and prosperity
for the HKSAR. Continuity after the change of
sovereignty is therefore of vital importance.” (Court of
Appeal, Ma Wai Kwan) 32
 Nature of the Basic Law
• At least 3 dimensions to the BL:
– International: implementation of an international
treaty
– Constitutional: the highest law in HKSAR, which is
a subnational unit
– National / domestic: a national law of the PRC,
which is a national unit

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 Nature of the Basic Law
• Issues raised by this multi-faceted nature
– Relationship between BL and Joint Declaration
– Relationship between BL and PRC constitution
• Issue of “direct applicability” of the PRC constitution in
HK, i.e. applicability without mediation via the BL
– Relationship between BL and other national laws
or other decisions issued by the NPC and NPCSC

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 Nature of the Basic Law
• “Save and except that the socialist system and policies shall not
be practised in Hong Kong, the [PRC] Constitution on the
whole must apply to the HKSAR as an inalienable part of the
People’s Republic of China. Under both the [PRC] Constitution
and the Basic Law, the Standing Committee has the ultimate
authority and power to decide if a subject matter lying at the
interface of the two systems conforms with the Constitution
and the Basic Law. The authority of the Standing Committee
to make such decision must be fully acknowledged and
respected in the HKSAR. As both the Mainland and Hong Kong
systems are within one country and one national constitutional
order, such Standing Committee’s decision made in conformity
with the Constitution and the Basic Law under the Mainland
system is binding in Hong Kong.” (Kwok Cheuk Kin v Secretary
for Justice [2021] HKCA 871 [66], in obiter)
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 Purpose of the Basic Law
• Significance of question
– Affects how its provisions should be understood
and applied
• Beyond rhetorics, what do “one country two
systems” and “high degree of autonomy”
actually mean?

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 Purpose of the Basic Law
• Historical context (1980s):
– China’s primary objective: peaceful resumption of
sovereignty over HK
– Different economic, political, legal, social systems,
values and cultures arising from more than 150
years of British colonial rule
– Confidence crisis in HK
– Economic prosperity in HK; HK’s utility in China’s
economic reform
– Reunification of Taiwan as the ultimate goal

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 Purpose of the Basic Law
• Resulting themes in Basic Law
– Upholding of sovereignty
– Continuity / preservation of capitalist system
– Separation of legal, social and political systems
– Autonomy?
– Possible tension between continuity and
autonomy?
• Ghai: autonomy is secondary and contingent on
preservation of a special kind of capitalism
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 Purpose of the Basic Law
• “Autonomy is an imperative of the economic
system – in that sense the basis of HKSAR’s
autonomy is different from many other examples
where it is founded in the accommodation of
social, cultural or ethnic diversity.” “The primary
purpose of the Basic Law, which is to preserve a
particular kind of economic and political system
in Hong Kong, differs from other instances of
autonomy. Autonomy is secondary, and is
contingent on the other, larger aim.” (Ghai, Hong
Kong’s New Constitutional Order, 140, 184)
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 Purpose of the Basic Law
• “Political institutions and arrangements are a
key determinant of the scope and viability of
autonomy. In the Basic Law, these are drawn
from the logic of the special kind of
capitalism prescribed for the HKSAR – or what
is assumed to be its logic (which works against
democracy and favours a powerful executive),
rather than from the logic of general
autonomy or self-realization.” (Ghai, above,
139-140)
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 Purpose of the Basic Law
• “[P]olitical values and institutions which might
elsewhere be regarded as essential or important
to capitalism are seen as antithetical to the
prosperity and stability of Hong Kong, and are to
be avoided in favour of an outdated colonial
political order under the cover of ‘current
systems’. There is thus a curious but deliberate
imbalance in One Country Two Systems: a dying
socialist economic system clothed with a strong
communist political apparatus and a vibrant
capitalism clad in a restrictive political order.”
(Ghai, above, 2001, 141)
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 Purpose of the Basic Law
• Divergent understandings and expectations of
“One Country, Two Systems”
• Consensus on broad principles and values is
necessary to sustain constitutional
arrangements
• Forging of consensus post-2019

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 Purpose of the BL
• For the key tenet’s of the Chinese govt’s current
understandings, see e.g.
– the State Council’s White Paper on the Practice of the
“One Country, Two Systems” Policy in the HKSAR (10
June 2014)
– Xi Jinping’s address at the 20th anniversary of the
HKSAR (1 July 2017)
– Luo Huining’s keynote speech at the Forum on “The
Communist Party of China and the ‘One Country, Two
Systems’ model” (12 June 2021)
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 Purpose of the BL
• Manifestations of the Chinese govt’s
“comprehensive jurisdiction” over HK:
– Exercising plenary and free-standing powers of
interpretation under BL 158
– Issuing decisions in relation to HK using general
powers under PRC constitution with no specific
references in the BL

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 Purpose of the BL
Chinese government Some voices in HK

Chinese govt has “overall Spatial division of powers;

jurisdiction” in HK; HK has jurisdiction over all
Chinese government local matters except
authorises and supervises foreign affairs and defence
HK’s exercise of autonomy,
and exercises “effective
administration” over HK

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 Purpose of the BL
Chinese government Some voices in HK

Emphasis on the priority of Emphasis on at least the

sovereignty over parity of the two within
separation of systems the concept of 1C2S
Sees maintenance of Sense of a unique Hong
capitalism/ economic Kong identity, different
prosperity and stability in cultural and political values
HK as the primary basis of and worldviews
1C2S;
economic integration is
the trend
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 Food for thought
• To what extent does HK have constitutional
law as opposed to mere constitutional
politics? To what extent is HK constitutional
law a distinct field of study from PRC
constitutional law?
• Vision for China-Hong Kong constitutional
relations; what constitutional and institutional
arrangements can be made to deflect the
centripetal and centrifugal forces on the 1C2S
model?
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 Food for thought
• HK will remain an interesting ground for
– Testing whether two highly divergent visions of
constitutionalism can be maintained under one
sovereign roof, and if so, how. And the related
question of whether a liberal enclave can be
maintained within a socialist party state, and if so,
how.
– Observing the changing nature of a legal order (or
of the relationship between two legal orders). Is
the lens of the “dual state” helpful for our
understanding of constitutional developments in
HK?
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