Constitutional review under "One country, two systems"

: origin, legitimacy and implications

Abstract

This dissertation aims at exploring the origin and legitimacy of constitutional review under "one country, two systems" ("OCTS") and their implications. It adopts research methodology from the law and society movement and builds an analytical framework based on theories of legal-social covariation. With the assistance of this research methodology and the analytical framework, it argues that the emergence of constitutional review can largely be attributed to two factors - the dynamics of legal crises and the multiple-constitutional architecture which are correlated with each other. The dynamics of legal crises includes some basic elements - legal crisis, organizational principle, integration process, social mobilization and new type of law. The basic logic of the dynamics of legal crises is as follows. Due to the antagonism between the "totalistic bureaucratic law" in Mainland China and the "formal autonomous law" in Hong Kong, both laws in the "two systems" potentially would fall in the internal "legitimation crisis" and the external system crisis", when the "two systems" were supposed to coexist in "one country in the early 1980s. To prevent from the legal crises, OCTS as a new "organizational principle" which was put forward by Beijing and recorded in the Joint Declaration brought about new norms and values including sovereignty and "high degree of autonomy". The process of integrating the principle of OCTS into legal structure resulted in the Basic Law as a new type of law, which was accompanied with some social mobilization, political reform and political movement. Subsequently it caused a further legal-social covariation in Hong Kong, which provided ongoing dynamics of legal crisis. Incorporating sovereignty and "high degree of autonomy" through the principle of OCTS, the Basic Law bears a tension between rules with political orientation and rules with legal orientation which originated from the antagonism between the totalistic bureaucratic law and the formal autonomous law. To deal with the tension, the "multiple-constitutional architecture" which is composed of constitutional norms at three levels - national, local and international in the Basic Law provides some basic rules and a rough mechanism. It provides institutional space and incentive for the emergence of constitutional review. Thus, with the dynamics of legal crisis and the multiple-constitutional architecture, constitutional review emerged through the two-stage of "historical bargain" between political institution and legal institution. At the stage one (1990-1997), the old "historical bargain" between political institution and legal institution in the Colony of Hong Kong was revised through the democratization of the legislature and the empowerment of the judiciary, while at the stage two (1997-2012), the "historical bargain" between political institution and legal institution in the Hong Kong SAR was renewed, resulting in a compound constitutional review in which the power of constitutional review was shared by the Hong Kong courts and the NPCSC. The legitimacy of constitutional review under OCTS lies in securing autonomy of law based on "discursive rationality". First of all, such legitimacy is drawn from empirical facts about how constitutional review emerged under OCTS. Since the empirical facts are composed of facts about the legal-social covariation, it may say the legitimacy has been examined at an aspect which integrated both legal and sociological dimensions. This studies further traces the evolving relationship between autonomy of law and constitutional review in theory, and reveals that the legitimacy of constitutional review lies in securing autonomy of law in general. What is more, the practice of constitutional review under OCTS supplements the institutional dialogue" and the "rule dialogue" for securing autonomy of law. These dialogues embody the logic of procedural legitimation which reflects "discursive rationality" in Habermas' term. Thus, securing autonomy of law based on discursive rationality" reflects the legitimacy of constitutional review under OCTS in the legal, sociological, and theoretical dimensions. In addition, the constitutional review under OCTS is seldom bothered by the anti-majoritarian difficulty, and on the contrary, it reveals that the development of democracy in Hong Kong provided chances and institutional spaces for the emergence of constitutional review; in return, constitutional review promoted democratization. Based on these findings, this dissertation further makes an integrative and comparative research on origins and legitimacy of constitutional review and discusses their implications. First of all, it challenges the previous studies and suggests an integrative approach to explore origins of constitutional review. Secondly, through a further exploration of constitutional review in mainland China, the USA and Britain，it induces a basic rule of emergence of constitutional review: the more differences of law the multiple-constitutional architecture accommodates, the more dynamics of legal crisis a society has, the more likely constitutional review emerges. Thirdly, it constructs three archetypes of legitimate constitutional review, and discusses their implications for the anti-majoritarian difficulty and a robust of constitutional review. Fourthly, it explores theoretical implications of the multiple-constitutional architecture" and comes up with a new concept - "multiple-constitutional system" to describe federal system and unitary system with special regions under it. Lastly, it also examines the practical implications of the multiple-constitutional architecture for Greater China towards constitutionalism, by re-thinking of flaws and challenges in pursuing constitutionalism.

Date of Award	15 Jul 2014
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Guobin ZHU (Supervisor)