Study Notes on Hong Kong in the Wider Constitutional Order
Introduction to the Course
Welcome to the course "Hong Kong in the Wider Constitutional Order"
The course consists of four modules:
Introduction: Basic Concepts and Themes
China’s Rise: A Bicentennial Perspective
One Country, Two Systems: Past and Present
National Security in the Wider Constitutional Order
Objective: Enhance understanding of basic concepts and themes related to constitutional order.
Constitutional Order and National Constitutional Order
Importance: Understanding legal articles and clauses is essential but should focus on concepts and implications rather than rote memorization.
Key Concept: "Constitutional Order"
1.1 Constitutional Order
Definition: The term "constitutional order" frequently emphasized by the central government and the Hong Kong Special Administrative Region (HKSAR) government.
White Paper Reference: In the white paper "Hong Kong: Democratic Progress under the Framework of One Country, Two Systems" (2021), the term is mentioned 10 times.
Key Quote from the White Paper: "The constitutional order must be consolidated to safeguard national security. In developing democracy in Hong Kong, it is imperative to consolidate the order established by the Constitution and the Basic Law…"
Constitutional Status of HKSAR:
"The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China."
"The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy."
National Security Context: National security is crucial for peace and democracy in Hong Kong; without it, stability and democracy are unattainable.
Understanding Constitutional Order (Tushnet's Definition)
According to Mark Tushnet (2003):
"Constitutional order refers to a reasonably stable set of institutions through which a nation’s fundamental decisions are made over a sustained period, and the principles that guide those decisions."
It comprises:
Institutions: Departments and ministries of government.
Principles: Principles governing the assignment of powers, cooperation, human rights, rule of law, etc.
Example: In the USA:
Institutions: Supreme Court, Congress, Presidency.
Principles: Constitution, various laws and decrees.
Evolution: Constitutional order develops over time and is subject to change.
1.2 The Constitutional Order of the Nation
Expanded understanding of "the constitutional order of the nation":
Level of Principles:
Comprises the Constitution of the People's Republic of China and related laws established by legal departments (e.g., civil law, administrative law, etc.).
Level of Institutions:
Comprises the National People's Congress, Standing Committee, People's Courts, and central/local governments.
Constitutional Order Related to Hong Kong:
Key components include:
Constitution of the People's Republic of China
Basic Law of HKSAR
National Security Law in HKSAR
Relevant laws and principles for local governance.
Roles of central and local governments including key institutions in governance.
Constitutional issues will be further examined in later modules by experts.
The Constitutional Order of the Nation and State Capacity
Module Two Focus: State capacity and economic development, including the historical decline of Old China and the rise of New China.
Reason for State Capacity Discussion: Provides a broader context for understanding the constitutional order, rooted in China's ancient civilization.
2.1 Historical Review of China's Legal System
Article 1 of the Constitution: "The People's Republic of China is a socialist state governed by a people's democratic dictatorship…"
Differences: Distinct from Western constitutions like those of the UK or USA.
Considerations:
Why does the Constitution reflect such features?
Historical comparison with legal systems prior to New China.
2.1.1 The Legal System of Ancient China
Classification: Ancient legal systems classified into various genealogies, with China's system recognized as unique.
Influence: Impact on other East Asian countries (Japan, Korea, Vietnam, etc.).
Core Features of Chinese Legal System (Zhang Jinfan, 2010):
Foundation: Influences from Confucianism, emphasizing hierarchical relationships.
Integration of Rites: Legal consequences for breaches of familial ethical codes.
Clan Structure: Laws governing familial obligations and rights.
Centralization: Unified authority over legislation and judiciary.
Separation of Laws: Mixing civil and criminal law in practice until modern reforms.
Ethnic Fusion: Historical assimilation of legal practices from various ethnic groups, particularly Han Chinese dominance.
2.1.2 Development of the Traditional Chinese Legal System in the Modern Era
Disintegration Post-1911: Overthrow of the monarchy led to the collapse of traditional legal systems.
Influence of Western Models: Adoption of Western legal principles in the establishment of the new legal frameworks.
2.2 State Capacity and Establishment of the Constitutional Order
State Capacity Definition (Wang Shaoguang): Ability of a state to turn its will into action—crucial for national development and constitutional order.
Historically Contextualized: China's capacity post-Opium War to achieve sovereignty and reforms shaped the modern state constitution.
One Country, Two Systems: Implementation reflects the historical evolution and the capacity to reassert control over Hong Kong.
The Constitutional Order of China: Constitution and Basic Law
3.1 Misunderstandings of the Constitution and Basic Law
Common Misinterpretations in Hong Kong:
Constitution inapplicable due to the Basic Law.
Only Article 31 applicable, ignoring other relevant constitutional articles.
Conditional Applicability: Relying on interpretations by the National People's Congress Standing Committee.
Conflict of Systems: Questioning whether Basic Law aligns with socialist constitutional mandates.
3.2 Understanding the Interrelationship of the Constitution and Basic Law
Constitutional Applicability:
Basic Law established under Article 31 of Constitution (legal basis for HKSAR).
Legal Basis for Basic Law Legislation:
Broad Legal Foundation: Both Article 31 and other provisions relevant to interpretation and governance are applicable.
National Policies as Basis: Case made that guiding principles of China can influence basic law interpretation.
Conclusion in Relationship Understanding: Both constitutional documents are interlinked and must be examined critically from original texts.
Security and National Security
4.1 Importance of Safeguarding National Security
Global Security Theme: Incidents (9/11, COVID-19) illustrate the universal consciousness about security. National security is pivotal for the development of a nation.
Scope of National Security: Encompasses multiple dimensions including political, territorial, military, economic, cultural, socio-technical, etc.
4.2 National Security Law Legislation
Context and Rationale: Enacted to respond to national security risks from unlawful activities and foreign interference in Hong Kong's governance.
Legislative Framework: Established based on relevant constitutional articles, forming part of the legal structure relevant to HKSAR.
4.3 Academic and Global Awareness
Study and Interest: Evolution of national security as an academic field, as demonstrated by the increase in relevant publications and textbooks on the topic.
Conclusions
Basic Concepts Recap: "Constitutional order" and the significance of understanding HKSAR's position within the broader constitutional framework of China.
State Capacity's Role: Historical context within which the constitutional evolution of China and the development of New China’s legal system are understood.
Interrelation of Legal Documents: Calls for a nuanced understanding of the Constitution and Basic Law to clarify misconceptions.
National Security Recognition: Emphasizing national security’s rising importance on both local and global scales.