Saturday, January 29, 2022

Brief Thoughts on Pui-Yin Lo, "China's Socialist Unitary State and its Capitalist Administrative Regions" (Russian Law Journal 9(2):92 (2021)

 

It is rare, at least within elite academic circles, and certainly rarer after the enactment of the Hong Kong National Security Law, to see a robust defense of  the current application of the 'One Country-Two Systems' principle in Hong Kong.  It is rarer still to see that defense grounded in principles of Marxist Leninist constitutionalism. Dominant academic discourse on both constitutionalism and its application to China's autonomous regions, tends to be grounded in a now well established orthodoxy built around the core principles of civil and political rights, and the individual autonomy including within markets, that served as the foundation for the flowering of the brilliant normative and institutional frameworks of global liberal democratic constitutionalism between 1945 and 2015. Nonetheless Marxist Leninist constitutionalism, as it has developed autonomously in China since the dissolution of the Soviet Union and the bankruptcy of European Marxist-Leninism, now suggests another powerful framework for the discursive and normative constitution of states, and the structuring of power, rights, and duties within it. This emerging system has now come to the attention of the liberal democratic states. The incompatibility of Leninist core structures with those of liberal democracy has produced criticism and considerations of legitimacy more than of dialogue and rigorous study (even while remaining loyal to one's own home system and values). That is a pity; especially when these analytic tropes infect comparative study in both directions.

In this environment, then, it is most welcome to read through, in an article accessible to non-Chinese audiences,  Pui-Yin Lo, "China's Socialist Unitary State and its Capitalist Administrative Regions," Russian Law Journal 9(2):92-124 (2021).  Dr. Pui-yin Lo is a barrister in private practice in Hong Kong and a Visiting Fellow of the Centre for Chinese Law of the Faculty of Law of the University of Hong Kong. Here, the abstract:

The People’s Republic of China is, according to its Constitution, “a unitary multi-national state” based on the socialist system. The Constitution also allows the state to establish “special administrative regions” in light of “specific conditions.” This provision backs the principle of “One Country, Two Systems” that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a “Basic Law” prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese “Central Authorities” and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that “One Country, Two Systems” with not be “distorted,” that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of “One Country, Two Systems” in the two regions has been “developmental,” with the law serving the interests of the “Centre” under the leadership of the Communist Party of China.

The article is worth a careful read.  The Abstract, Introduction and Table of Contents followalongwith some brief reflections.

 


Reflections:


1. The Article foregrounds one of the most interesting constitutional issues respecting autonomous regions. That is the issue of the fundamental constituting law system that occupies the apex position in the legalities that constitute both state and region. Two interesting positions have developed and were crystalized in the tug of war between domestic and transnational constitutional visions around the Hing Kong protests of 2019-2020 (considered in my book, Hong Kong Between 'One Country' and 'Two Systems'; chapters available HERE). The first is grounded on the notion of constitutionalism as endogenous (that is essentially wholly within) the states whose government (normative and institutional) is constituted thereby.  This endogenous constitutionalism is grounded in a self reflexive process of internal normative and discursive frameworks, protections within which are centered on internal discourse and shaped to some extent by conversation with other constituting peers. The other starts from the premise that constitutionalism, as an ideology with binding normative constraints) is a pre-condition to constitutional ordering in and within states, the legitimacy and authority of which must be considered as a function of conformity to that meta-ideology.  This exogenous constitutionalism then centers on the protection of the core principles and narratives of a legitimate constitutional state and the development and application of those norms and discourses within states.  Though the focus of these ideological and constituting philosophies has centered on the Hong Kong context in recent years, it bears powerfully on other regions with an autonomy "problem"--European states, the reconception of indigenous constitutionalism (e.g. Bolivia but elsewhere too), and states in various conditions of dependency.  

2. Pui-Yin Lo starts where he ought to, if one embraces the fundamental notion that the state of national constitutionalism must be understood by reference to its own constituting instruments.Here the key is the notion of China as a socialist unitary state (pp. 95-99). That, in turn, invokes four documents around which that unity is constructed and the possibilities of autonomy of the peripheries of the Chinese heartland may be framed. In Western style, one starts with the state constitution which declares the political character of the organization of the state--as unitary and socialist.  But those descriptions do not provide full normative content other than to point to its core characteristics--a state based on principles of democratic dictatorship, the socialist character of which is bound up in the leadership of the Chinese Communist Party (CPC). That, in turn, requires consideration of the General Program of the CPC Constitution, especially with respect to the normative framing of Hong Kong autonomy. The expression of that framing is then realized in two other documents, the Hong Kong Basic Law and the instrument that included provisions around the transfer of Hong Kong sovereignty back to China, the Sino-UK Joint Declaration.Considered in this way, both the concept of unity and the supremacy of national constituting instruments necessarily locate the documents memorializing the conditions of Hong Kong autonomy in a subordinate position. That, certainly, is to some extent a conventional approach, one with which the great liberal democratic states would find somewhat compatible.  Yet it is in the relationship between this national constituting (heartland and periphery) and the role of international (legal and normative) constraint that is narrowed in the context of socialist constitutionalism even as it becomes more expanded in the context of more globalizing liberal democratic constitutionalism.     

3. The issue, then turns to the nature of permissible autonomy within  (rather than beyond or as exception to) Marxist Leninist constitutionalism as developed in China. That character both temporary and centered on economics: to "allow these territories to continue under the “capitalist” system with the current social and economic systems remaining unchanged, their legal systems remaining “basically” unchanged, and their ways of life and various statuses remaining unchanged, and to continue to maintain or establish economic relations with other countries and regions" (p. 99). That is at the core of the socialist constitutional project.  One recalls a key passage from Mao Zedong's "On the People's Democratic Dictatorship," 

"Our present policy is to regulate capitalism, not to destroy it. But the national bourgeoisie cannot be the leader of the revolution, nor should it have the chief role in state power. The reason it cannot be the leader of the revolution and should not have the chief role in state power is that the social and economic position of the national bourgeoisie determines its weakness; it lacks foresight and sufficient courage and many of its members are afraid of the masses." (Mao Zedong, "On the People's Democratic Dictatorship" (30 June 1949))
And that really is the point here in the section on implementation (pp. 99-102). 

4. That notion of progress in the socialist peripheries--whether they be national bourgeoisie or regions on the peripheries of the heartland--is a central element of both socialist constitutionalism and its dynamic nature.  The object is not a progress toward greater diversity in unity, but rather of unity within which diversity that is compatible with the national ethos may contribute to national progress. The focus is not on individual, or identity, or autonomy, but on the collective and the development of national resources to the ultimate goal--the establishment of a communist society. That suggests the rhythm and discursive  trajectories inherent in the discussion of the relationship between the regions and the Basic Laws (pp. 102-110). 

5. And that brings one around to the United Front--an issue with some great sensitivity now in liberal democratic states.  That sensitivity arises from the sense that the United Front represents a manifestation of the projection of Communist outward, generally, and of Chinese state interests, specifically. That is a matter for international relations--and an ironic commentary on the socialist principle of non-interference. But it also represents an interesting manifestation of the contests fro control of the narrative of legitimate constitutionalism, one in which it is apparently impossible to conceive of legitimacy for more than one narrative approach. But that is not necessarily where Pui-Yin Lo means to take the analysis (pp. 110-112). He suggests that the united front is a necessary part of the work of the CPC and its national structures to nudge that progress toward unity that is inherent in the fundamental premise of autonomy as temporary, or as a vehicle for eventual unity. Here Pui-Yin Lo centers democratic centralism in an interesting way. 

a more recent trend from the CPC and the CPG’s station in Hong Kong involves the Liaison office’s director or spokesperson making speeches and issuing statements on matters of public concern in Hong Kong. From the perspective of democratic centralism, this has to be regarded as an assertion of leadership and ideological tutelage over the official governmental institutions of the HKSar. While the CPC has not “come out” in Hong Kong yet, it is clear that it is a pervasive presence in Hong Kong, with its policies to be learned by all concerned with the administration of the HKSar. (p. 112)

6. It is then a matter of situating the constellation of regional and national aspirations, and the governmental structures around which they are framed (pp. 112-121).  This touches on the evolving nature of the administrative structures in Hong Kong (pp. 112-114); on economic integration within a broader area that may eventually make autonomy (understood as driven by economics) obsolete (pp. 115-117), and the National Security Law (pp. 117-121). On the past measure, Pui-Yin Lo states: "Hong Kong people continues to rule Hong Kong, albeit with a bigger stick. From this perspective, it is strange to find foreign governments condemning the HKnSL as diminishing the HKSar’s “high degree of autonomy” (p. 121). That is true enough--from the perspective of the overarching architecture of socialist constitutionalism grounded in the core principles of people's democratic dictatorship. What Hong Kong retains is a high degree of administrative autonomy, but as a necessary project of national unification, its degree of political autonomy beyond the boundaries of national constitutional constraints is quickly changing. But that was the point. 

7. In a sense, then, what Pui-Yin Lo chronicles--the object of analysis--is precisely the way in which Chinese Marxist Leninist constitutionalism is coming into its own.  And the way in which that development is expressed through the changes in its relations with its own peripheries. That growth is heavily tied to the foundations of Chinese Leninism--the transitional nature of accommodation, the core objectives of governmental purpose, the role of the vanguard and the basis of its legitimacy, and the character of the state apparatus in that constellation. It suggests the leading role of democratic centralism and of people's democratic dictatorship at the core of the Chinese normative project and the basis for its discursive tropes. And that, in the end, highlights the growing space between liberal democratic constitutionalism--and its imaginaries--from that of emerging Chinese Marxist Leninist constitutionalism.

8. Lastly, it is worth investing a moment in consequences.  More than anything this adds more evidence to what ought to be apparent in virtually all aspects of human organization.  That great, if marvelously and naively hopeful, age of convergence has now dissipated like the dew of a nourishing coastal fog in the heat and light of a Namibian summer morning. The drive toward convergence as the antidote to division and the inspiration for an age of solidarity (though not unity) is evaporating with respect to virtually every area of human organization.  Yet this is not an exercise in moving backward. Globalization has changed the landscape within which  fracture can reconstitute itself. This is a transnational fracturing, one that looks inward but projects itself outward along networks, and which more seamlessly structurally couples with other systems. That marks it as different from the age that disappeared in 1939 (the age of ethnos and the state), but different from the singular grand vision of 1945-2015, with its multiple variations built around points of normative convergence: identity, constitutionalism, empire, centers and their peripheries; cores and their collectives. And the great contradiction for the age the birth of which is now being witnessed: the great struggle between the drive toward multiple functionally differentiated constitutive communities and the necessity for collective solidarity.




 -----------------

 

PUI-YIN LO,
University of Hong Kong (Hong Kong, China)

https://doi.org/10.17589/2309-8678-2021-9-2-92-124

The People’s Republic of China is, according to its Constitution, “a unitary multi-national state” based on the socialist system. The Constitution also allows the state to establish “special administrative regions” in light of “specific conditions.” This provision backs the principle of “One Country, Two Systems” that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a “Basic Law” prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese “Central Authorities” and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that “One Country, Two Systems” with not be “distorted,” that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of “One Country, Two Systems” in the two regions has been “developmental,” with the law serving the interests of the “Centre” under the leadership of the Communist Party of China.

Keywords: People’s Republic of China; Hong Kong; socialist state; unitary state; Special Administrative Region; “One Country, Two Systems”; central-local relations; mechanisms of central control.

PUI-YIN LO 93

Recommended citation: Pui-yin Lo, China’s Socialist Unitary State and its Capitalist Special Administrative Regions: “One Country, Two Systems” and its Developmental Implementation, 9(2) russian Law Journal 92–124 (2021).

Table of Contents

Introduction
1. The People’s Republic of China as a Socialist Unitary State
2. The “One Country, Two Systems” Policy and its Implementation 3. The Special Administrative Regions and the Basic Laws

3.1. The Powers of the Central Authorities “in Accordance with” the Basic Laws
3.2. The Liaison Office of the Central People’s Government
and the Management of the United Front

3.3. The “Chief Executive-led” Government as the Accountable Proxy 3.4. National Economic and Social Development Planning
and the Greater Bay Area
3.5. The Hong Kong National Security Law

Conclusion

Introduction

China has advanced the principle of “one Country, two Systems” (oCtS principle) for the peaceful reunification of territories with the motherland since the 1980s. in 1997 and 1999, the oCtS principle was put into practice by the establishment of the Special administrative regions (Sars) of Hong Kong and macau following the return of those territories from British and Portuguese administration respectively.

unlike the socialist approach dealing with the question of “nationalities” hitherto, the oCtS principle is innovative as a political, institutional and constitutional initiative, whereby a socialist state led by the communist party vanguard, allows a territory to be administered by its local inhabitants with a “high degree of autonomy” and remaining in the meantime “capitalist” both in the economy and the way of life. and, to ensure peaceful transition of the resumption of exercise of sovereignty and assure the local inhabitants, the policies following the oCtS principle were set out in declaratory writing, together with a commitment that they would be stipulated in a “Basic Law” and remain unchanged for 50 years.1

1 See the Joint declaration of the Government of united Kingdom of Great Britain and the Government of the People’s republic of China on the Question of Hong Kong (19 december 1984), 1399 u.n.t.S. 33; 23 i.L.m. 1366 (1984); and the Joint declaration of the Government of the republic of Portugal and the Government of the People’s republic of China on the Question of macao (26 march 1987), 1498 u.n.t.S. 195; 5 asian ybk. of intl. L. 567 (1995).

RUSSIAN LAW JOURNAL Volume IX (2021) Issue 2 94

the commencement of the Basic Laws in respect of the Hong Kong Special admi- nistrative region (HKSar) in 1997 and in respect of the macau Special administrative region (mSar) in 1999 respectively began two decades of constitutional and legal interactions,2 if not struggle, between “the Central authorities” and the Sars principally through the medium of the sub-national Basic Laws, and at some critical junctures by the intervening reliance of the national Constitution.3

this article seeks to highlight the socialist thinking and mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and macau to ensure –

• that the “One Country, Two Systems” policy would not be “distorted”;
• that the “intentions” underlying the Basic Law would be observed;
• that national sovereignty, national security and national development interests would be safeguarded; and
• that the Special Administrative Regions would play a positive role in national economic development.
the Centre-initiated mechanisms have thus far included –
• the enlivening and timely application of the power of interpretation of the Basic Law by the Standing Committee of the national People’s Congress (nPCSC) (the standing body of the highest organ of state power, the national People’s Congress (nPC));

• the establishment of a liaison office of the Central People’s Government (CPG) in the Sar of cadres deployed there to monitor, liaise and co-ordinate political, social and cultural factions and units in the Sar through united Front and other works;

• the support and promotion of a form of “Chief Executive-led” government in the Sar to the exclusion of the practice of other governmental approaches such as a parliamentary system or a separation of powers/check and balance system;

• the inclusion of the SARs into the five-year programmatic national economic planning system, and the social and way of life integration of the Sars with their neighbouring cities (like the “Greater Bay area” concept and outline development plan) and of the residents of the Sars with their Chinese mainland compatriots (like the introduction of a resident card for those residents living in the Chinese mainland to enable them to enjoy state benefits); and

• the enactment, for the HKSAR, of a national law to safeguard national security there.

  1. 2  the Basic Law of the HKSar and the Basic Law of the mSar are structurally identical but have differences in drafting, including in relation to provisions protective of rights and freedoms of residents. For a comparison of the two Basic Laws, see albert H.y. Chen & Pui yin Lo, The Constitutional Orders of “One Country, Two Systems”: A Comparative Study of the Visible and Invisible Bases of Constitutional Review and Proportionality Analysis in the Chinese Special Administrative Regions of Hong Kong and Macau in The Invisible Constitution in Comparative Perspective 230 (rosalind dixon & adrienne Stone eds., 2018).

  2. 3  For comparisons of the legal systems of the HKSar and the mSar in the english language, see ignazio Castellucci, Legal Hybridity in Hong Kong and Macau, 57(4) mcGill L.J. 665 (2011); and eric C. ip, Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions (2019).

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reactions in the two Sars to interventions of the Central authorities have differed. Legal elites and pro-democracy politicians in the HKSar have reacted strongly against the Centre’s interventions and sought to enlist the courts of the HKSar to produce jurisprudence protective of the “two systems” element of the “one Country, two Systems” principle and resisted the introduction, maintenance and propagation of socialist approaches that are seen as “corrosive” of Hong Kong’s common law-based and internationalist legal and judicial systems.4 the response of the ruling elite in the mSar, by contrast, has been patriotically supportive.5 Hence this article will primary look into the moves and exchanges between the Central authorities, the HKSar’s Chief executive and the Government he or she leads, and the HKSar’s civil society in relation to central control to illustrate the extent that the socialist legacy in matters of legality have continued in China in the four decades since the adoption by the Communist Party of China of the policy of “reform and opening up.”


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