Chinese Constitutionalism in Context

In China, there is no constitutional court or independent constitutional council. Common courts cannot apply the Constitution when deciding cases. The constitutional review mechanism is incorporated in the legislative process, prior to legislation and in a record & review system. Hence, the authority and degree of constitutional review are influenced by the distribution of legislative powers between the central and local governments. In order to stimulate innovation and economic development, the central government allows the expansion of local legislation and encourages local governments to solve problems with local laws. In the meantime, the central government distrusts local governments and sets constitutional restrictions on local legislative authority. Local legislatures are struggling in complying with constitutional requirements, avoiding the repetition, and satisfying local demands.

In the 2020 annual report of the National People‘s Congress Legal Affairs Committee (LAC), a provincial regulation‘s inconsistency with a constitutional provision was publicized. Although the review proceedings were terminated upon the local legislature‘s promise to repeal the said law, thus preventing a formal declaration of unconstitutionality, it‘s the first time that the Constitution is grounded upon in a review of regional regulation in China. Noteworthy, though, is the LAC also relied upon other criteria in its review, such as reform agendas adopted by the CCP. To what extent should the CCP‘s high policy be absorbed into the NPC‘s constitutional doctrines? Will there be a parallel ground of review via the constitutional review procedure, which offers Party policy a direct status for reviewing local government acts? There‘s no clear answer from the NPC. Against this context, this paper analyses how the grounds of constitutional review should be established in China.

Hong Kong had been hailed as a liberal enclave within China. A contributing factor had been the constitutional jurisdiction of Hong Kong‘s common law courts applying the Hong Kong Basic Law. This paper describes, in three phases, developments of this jurisdiction to date. The first phase (1997-2001) involved the founding of jurisdiction through interacting with the Chinese Central Authorities that hold the power of interpretation of the Basic Law. The second phase (2001-2014) showed the Hong Kong courts resolving constitutional disputes with tools that avoided potential Central-local and local inter-branch conflicts. The third phase (2014-2021) found the Hong Kong courts acceding to Central improvements of comprehensive jurisdiction over Hong Kong by, among others, apparently denying kompetenz-kompetez. These three phases appear to align with changes of senior judicial leaders in Hong Kong.

The enactment of the 2020 Hong Kong National Security Law (NSL) embodies Beijing‘s efforts to complete the Grundnorm shift in HK‘s legal order, which has exerted sweeping influences over HK‘s common law system. The theoretical advancement underlying the legislation extends the PRC Constitution‘s validity to HK and explains away the legal autonomy guaranteed by the HK Basic Law (BL). National norms & central institutions are channelled into the city, with significant Chinese law implications for HK‘s rule of law. The NSL‘s enactment is to some extent an undeclared constitutional reform in HK that establishes a PRC Constitution-based legal order in lieu of one based on the BL. The PRC Constitution becomes the supreme and separate legal source of law in HK and has reshaped major aspects of the region‘s law. The NSL deepens the conflict between the two legal systems, highlighting the inherent tension of maintaining the unity of a heterogeneous legal order under “one country, two systems.“