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| Project Details |
| Funding Scheme : | General Research Fund | ||||||||||||||||||||||||
| Project Number : | 17611318 | ||||||||||||||||||||||||
| Project Title(English) : | Constitutional governance in ‘Greater China’ and the Unfinished Project of Chinese Constitutionalism | ||||||||||||||||||||||||
| Project Title(Chinese) : | 大中華”地區之憲政管治與中國憲政之未竟事業 | ||||||||||||||||||||||||
| Principal Investigator(English) : | Prof Chen, Albert Hung Yee | ||||||||||||||||||||||||
| Principal Investigator(Chinese) : | 陳弘毅 | ||||||||||||||||||||||||
| Department : | Department of Law | ||||||||||||||||||||||||
| Institution : | The University of Hong Kong | ||||||||||||||||||||||||
| E-mail Address : | albert.chen@hku.hk | ||||||||||||||||||||||||
| Tel : | 39172943 | ||||||||||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||||||||||
| Subject Area : | Social and Behavioural Sciences | ||||||||||||||||||||||||
| Exercise Year : | 2018 / 19 | ||||||||||||||||||||||||
| Fund Approved : | 491,980 | ||||||||||||||||||||||||
| Project Status : | Completed | ||||||||||||||||||||||||
| Completion Date : | 31-12-2021 | ||||||||||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
Since the constitutional movement of the late Qing dynasty, the quest for constitutionalism had been an important theme in modern Chinese political and legal developments. There were three eras of constitution-making: the last decade of the Qing (1901-11), the republican era (1911-1949), and the communist era (1949-). Dr Sun Yat-sen, founding father of the Republic of China (RoC), developed a three-stage theory of the Chinese republic’s political development: military rule, 'political tutelage' and 'constitutionalism' (xianzheng, alternatively translated as 'constitutional governance'). Although China in theory entered the third stage when a new RoC Constitution was enacted in 1946, this Constitution became largely suspended as the RoC regime moved to Taiwan and introduced martial law upon its defeat in the Chinese Civil War. The establishment of the People’s Republic of China (PRC) in 1949 inaugurated a new era of constitution-making under the Soviet Union’s influence. The ‘Western’ or ‘bourgeois’ idea of constitutionalism was however rejected, despite the making of several Constitutions of the PRC since 1954. Under the Xi Jingping regime, the very discourse of ‘constitutionalism’ (xianzheng) has been suppressed, even though the concept of ‘ruling the country according to law’ (which was constitutionalized in 1999) has been re-affirmed.
Despite setbacks in the project of constitutionalism in mainland China, Taiwan has since the 1990s realized the constitutionalism that was promised by the 1946 Constitution. At the same time, constitutional governance has also been practiced in the Special Administrative Regions of Hong Kong and Macau under the ‘One Country Two Systems’ framework in accordance with their Basic Laws. The experience of Taiwan, Hong Kong and Macau in constitutional governance and the practice of constitutionalism in a Chinese society may serve as a valuable resource for mainland China to draw on should it pursue political and constitutional reforms at some point in the future.
This project seeks to describe, analyze, explain and compare the institutions and dynamics of constitutional governance and the practice of constitutionalism in Taiwan, Hong Kong and Macau, and explore their implications for the possible development of constitutionalism in mainland China. It also reviews the constitutional history of China since the late Qing attempt at constitutional reform, and examines the current practice and discourse of the Rule of Law and public law in mainland China, for the purpose of exploring the possibilities of constitutional reform in the future. 晚清的立憲運動以來，追求憲政是中國現代政治和法律史的一個主題。現代中國的憲法發展包括三個時期，即（1）晚清（1901至1911年）、民國時期（1911至1949年），以及中華人民共和國時期（1949年至今）。孫中山先生提出了中華民國的政治發展的三個階段的理論，即“軍政”、“訓政”和“憲政”。1946年《中華民國憲法》的制定，理論上把中國帶進憲政的階段，但由於國共內戰，這部憲法未能在中國大陸實施。1949年中華人民共和國成立以後，憲法的制定受到蘇聯的憲法思想的影響，尤其是在1954年《中華人民共和國憲法》的制定的時候。另一方面，西方“資產階級”憲法思想則被堅決否定。2014年以來，“憲政”成為討論的“禁區”，但“依法治國”的構想卻已經在1999年修憲時寫進了憲法，並在習近平執政的新時代得到重視和提倡。 雖然“憲政”的事業在中國大陸的前途未卜，但在台灣， 1990年代以來已經在台灣地區範圍內實現了1946年憲法的憲政構想。同時，在“一國兩制”的憲制框架下，香港和澳門特別行政區已經實行以《基本法》為依據的憲政管治。台灣地區和香港及澳門特別行政區的憲政實踐，對中國大陸來說應算是寶貴的資源；如果中國大陸在未來進行政治和憲政改革，台、港、澳的經驗將具有參考價值。 本研究項目的目的，在於敘述、分析，解釋和比較台灣地區和港澳特別行政區的憲政實踐，並探討此實踐對於中國大陸未來憲政發展的意義。本研究項目並將回顧晚清以來中國的憲政史，並審視當前中國大陸關於法治和公法的理論和實踐，從而探索其未來的憲政改革的可能性。 |
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| Realisation of objectives: | Objective one. I have reviewed the existing literature in English in Chinese on the history of the development of constitutionalism in China since the late 19 century, the drafting of the 1954 PRC Constitution and the subsequent constitutions including the current constitution of 1982, the major amendments to the 1982 Constitution, and the current practice and discourse of the Rule of Law in China. The relevant rules and practices of the Chinese constitutional system, and the writings of leading scholars of Chinese constitution law have been studied, with a view to extracting resources for the possible development of Chinese constitutionalism in the future. The theory and practice of constitutionalism originated in the Western world and were ‘imported’ into China and in the late 19 century. I have researched into the multiple purposes behind the project of constitutional reform in the late Qing and the early Republican periods. Unlike the situation in many Western states in which the constitutional project was largely shaped by the Enlightenment ideas and ideals of protecting liberties and rights, designing a rational system of government and subjecting political power to legal control, the constitutional projects in early modern China was partly for the purpose of bringing China in line with international practices, and also for the purpose of strengthening the nascent Chinese nation-state to ensure its survival in the age of Western imperialism. In Chinese constitutional history of the communist era, the 1954 Constitution was of fundamental importance. This constitution was actually to a significant extent modelled on the Stalinist constitution of the USSR. PRC constitutional developments have been much shaped by path-dependency; the Soviet constitutional model adopted by the PRC in 1954 still dominates the Chinese constitutional system even today. At the same time, the various subsequent amendments to the 1982 Constitution demonstrated the influence of global constitutional values and trends in China in the era of ‘reform and opening’ inaugurated by Deng Xiaoping. Objective two. I have studied the history of the enactment of the 1946 Constitution of the Republic of China (ROC) and the different phases of its implementation since 1946. I have investigated into the guiding ideology behind this constitution, which was Dr Sun Yat-sen’s political thought. After the retreat of the Kuomintang (KMT) government to Taiwan in 1949, the ROC Constitution experienced a phase of authoritarian constitutionalism, with the imposition of martial law and the introduction of the ‘Temporary Provisions for the Period of National Mobilization to Suppress the Communist Rebellion’. I have researched into the subsequent transition to liberal democratic constitutionalism that began in the late 1980s and was speedily completed in the 1990s. One primary focus of my study has been the operation of the Council of Grand Justices as the constitutional court of the ROC regime. I have studied the 1946 Constitution in considerable details. The Constitution reflected Sun Yat’sen’s constitutional thought. Sun’s most significant contributions include the development of the theory of the three-stage process of China’s constitutional development, and the theorizing of the institutional framework of the five ‘yuans’, which show upon which represented a synthesis of Western separation of (three) powers and the traditional Chinese institutions of the censorate and the civil service examination system. The 1946 Constitution was also shaped by the constitutional thought of Zhang Junmai (Carson Chang), who was familiar with German as well as Anglo-American constitutionalism. Even though the 1946 Constitution had not been fully put into practice during the authoritarian era of KMT rule in Taiwan, post 1987 developments have realised the promises of this constitution. The case of Taiwan demonstrates that the 1946 Constitution, made in mainland China and designed by thinkers committed to the Chinese nation-state and its future, can sustain a Western-style liberal constitutional democracy. On the other hand, I have also examined and evaluated the criticism that because of the pernicious political struggles between the KMT and the Democratic Progressive Party, Taiwan after democratization has been beset by populism and purely electoral democracy (rather than genuine liberal constitutional democracy), sometimes in disregard of the constitutional values of toleration, pluralism, and respect for different views. Objective three. I have reviewed the history of the drafting of the Basic Laws of the Special Administrative Regions of Hong Kong and Macau, with a view to identifying the basic elements of the original design of the constitutional arrangement known as ‘One Country, Two Systems’. I have studied the history of the implementation of the Basic Laws, particularly the Hong Kong Basic Law. Elements of the practice of the constitutional arrangement of ‘One Country, Two Systems’ in Hong Kong and Macau that demonstrate constitutionalism at work have been studied and identified. In the case of Hong Kong, the fundamental change to the constitutional system brought about by the enactment of the national security law in 2020 and the electoral reform in 2021 have been analysed. British colonial rule in Hong Kong resulted in the transplant of the common law and the values of the Rule of Law and judicial independence to Hong Kong. Hong Kong before the handover was more Westernised than either mainland or Taiwan in terms of its legal and constitutional culture. After the signing of the Sino-British Joint Declaration in 1984, the British Hong Kong government introduced democratic constitutional reforms and enacted a bill of rights. The latter inaugurated the era of constitutional judicial review in Hong Kong. After the handover in 1997, significant progress in the practice of constitutionalism had been made in the Hong Kong Special Administrative Region (HKSAR), at least until the enactment of the National Security Law in 2020 and the electoral reform in 2021. Before the introduction of these measures in the HKSAR by the PRC authorities in response to the ‘anti-extradition bill’ movement of 2019, Hong Kong may be considered a showcase of the synthesis of Western and socialist Chinese ideas and practices of constitutionalism, as exemplified by the interaction between the Hong Kong courts and the National People’s Congress Standing Committee, and the use of legal and constitutional means by the PRC authorities to shape constitutional developments in Hong Kong. The political struggles between the ‘pro-Establishment’ camp and the ‘pan-democrats’, like the struggles between the ‘blue’ and the ‘green’ political forces in Taiwan, exemplified the vibrant constitutional dynamics of a pluralistic political system and an autonomous civil society. Objective four. In order to investigate into the prospects for the development of Chinese constitutionalism in the future, I have studied the theoretical contributions of leading scholars such as Larry Backer, Jiang Shigong, Chen Duanhong, Gao Quanxi, Qin Qianhong, Ke Huaqing, Tong Zhiwei, Han Dayuan, Lin Laifan, Zhang Qianfan, Ren Jiantao, Tian Lei, etc. I have also reviewed the major schools of thought regarding Chinese constitutionalism, such as liberal constitutionalism, Confucian constitutionalism and socialist constitutionalism. The significance of the official rejection of ‘constitutionalism’ (xianzheng) discourse since 2013, and the implications of Xi Jinping’s ‘Rule of Law’ thought for the development of constitutionalism in the foreseeable future, have been investigated into. Furthermore, I have also identified the concept, doctrines, principles, rules, institutions and practices that have evolved within the PRC constitutional, political and legal systems in the era of ‘reform and opening’ that may provide a foundation for the development of constitutionalism in China in the future. | ||||||||||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||||||||||
| Major findings and research outcome: | Since the late Qing Dynasty, China has accumulated significant amounts of experience in developing constitutional theories and constitutional doctrine, and in drafting constitutions and seeking to implement them. The various exercises in Chinese constitutionalism include the late Qing constitutional reform, the early Republican experiments in Chinese constitutionalism, and the subsequent constitutional exercises conducted by the Chinese Nationalist Party regime and the Chinese Communist Party. After 1949, the Chinese constitutional experience has continued to develop in Taiwan under the 1946 Constitution of the Republic of China, and in mainland China under the 1954 PRC Constitution and its successors. The enactment of the 1982 Constitution of the new era of ‘reform and opening’ inaugurated a new stage in the development of Chinese constitutionalism. At around the same time, the constitutional project of ‘One Country, Two Systems’ was conceived; it was then mapped out in the two Basic Laws of the Special Administrative Regions of Hong Kong and Macau, which have been implemented since 1997 and 1999 respectively. Since Taiwan’s democratisation began in the late 1980s, the liberal-democratic promises of the 1946 Constitution have been largely realised in Taiwan. The constitutional project of ‘One Country, Two Systems’, which entailed a synthesis of elements of liberal democratic constitutionalism and Chinese socialist constitutional practice, was originally promising, but suffered a significant setback after the ‘anti-extradition bill’ movement of 2019. In the Chinese mainland under Xi Jinping, ‘ruling the country according to law’ continued to be emphasized, but the discourse of constitutionalism was rejected and banned. The prospects for the development of constitutionalism in mainland China are not promising in the short term. However, the legal reforms that the PRC has continuously and consistently engaged in since the late 1970s, as well as the theories developed by Chinese scholars of constitutional law and constitutionalism, collectively constitute resources that can serve as the foundation for the future development of Chinese constitutionalism. Furthermore, the constitutional experience that has been accumulated in Taiwan, Hong Kong and Macau may also contribute to this development. | ||||||||||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
Using the dichotomy between ‘political constitutionalism’ and ‘legal’ or ‘judicial constitutionalism’, it can be said that mainland China practised the former, while Taiwan and also to a considerable extent Hong Kong practised the latter. Judicial constitutionalism began to develop in Taiwan even before its democratisation in the late 1980s, and paved a good foundation for its subsequent liberalisation and democratisation. In Hong Kong, constitutional judicial review subject to the possible intervention of the NPCSC also flourished under the constitutional framework of ‘One Country, Two Systems’. Drawing from such experience in Hong Kong and Taiwan, it is possible and practicable for judicial constitutionalism to evolve in mainland China even under one-party rule. Further investigations into this potential should be viable and promising. Other potential areas for further research include the possible revival of the movement for separation of party and state proposed in the charity young area in the 1980s, and the possibility that existing institutional mechanisms within the People’s Congress system (such as its power of scrutiny of the administration) may be activated in a liberalised political atmosphere in the future to achieve the checks and balances, pluralism and the expression of diverse interests and opinions that are required by constitutionalism. | ||||||||||||||||||||||||
| Layman's Summary of Completion Report: | Achieving constitutionalism in the Chinese nation-state has been a fundamental aspiration of the Chinese people since the late Qing dynasty. Significant amounts of experience in developing constitutional doctrines and building constitutional institutions has been accumulated in the Republican era and in the PRC. The essential elements of constitutionalism include the Rule of Law, separation of powers, political checks and balances, judicial independence, and the protection of civil liberties and human rights. These elements have been largely realised in Taiwan since the political reform of the late 1980s, and also to a significant extent in the special administrative regions of Hong Kong and Macau. In mainland China, significant progress has been made in the development of the Rule of Law in the era of ‘reform and opening’ since the 1980s. In addition to the Rule of Law, the concept of supervision of the exercise of power has also been increasingly recognised in contemporary China. These developments, together with the strengthening of the institutional capacity of the People’s Congress system (at the national and local levels) and the court system, provide a good foundation for the realisation of constitutionalism in mainland China in the long-term. | ||||||||||||||||||||||||
| Research Output | |||||||||||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
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| SCREEN ID: SCRRM00542 |