Alec Stone Sweet and Trevor Wan on Global Constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the Legal System? (International Journal of Constitutional Law)

"Global constitutionalism and the People’s Republic of China: Dignity as the “fundamental basis” of the legal system?"

Alec Stone Sweet, Trevor T W Wan

International Journal of Constitutional Law, Volume 21, Issue 2

Published:22 May 2023

Abstract: The People’s Republic of China has declared dignity to be a foundational norm of its legal system, as institutionalized through a suite of constitutional and legislative reforms. Indeed, the 2017–21 period saw the adoption of some of the most far-reaching statutes in the history of the PRC, the centerpiece of which is the new Civil Code (2021). In both structure and content, provisions of the Civil Code comprise a quasi-constitutional charter of rights. Indeed, many Chinese scholars do treat the Civil Code as such, developing sophisticated constitutional theory along the way. At the core of these claims is dignity, which occupies a prominent position within the Civil Code, and from which a host of additional rights, including unenumerated rights, can be derived. After situating these developments in light of global constitutional practice, we examine the emergence of dignity as an officially sanctioned commitment device, and analyze the pertinent scholarly discourse, structure, and content of the new Civil Code, and the various roles that the Communist Party of China, the National People’s Congress, and the Supreme People’s Court are expected to perform in supervising the work of the judiciary in operationalizing the Civil Code. We conclude that while the PRC has not fully embraced the dignity norm in the way other constitutional systems have, it has nonetheless permitted significant discursive debates that deserve to be analyzed comparatively.

New Book: Hong Kong in China—Rethinking the Hong Kong–Mainland Relationship (in Chinese) (香港在中國—重新思考內地與香港關係) by Christine Loh and Richard Cullen

"Hong Kong in China—Rethinking the Hong Kong–Mainland Relationship (in Chinese)"
<<香港在中國—重新思考內地與香港關係>>
Author / Editor
著 陸恭蕙 (Ms Christine Loh) 高禮文 (Professor Richard Cullen) , 譯 魏磊傑
City University of Hong Kong Press
Published in August 2021

98 pp.

Overview: It is over 20 years since British Hong Kong became the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC). Much has happened that is positive since 1997. At the same time there have been recurring political incidents and stand-offs which have produced a series of severe policy log-jams and bred anxiety among the people of Hong Kong. There is a belief that Hong Kong is “stuck” and unable to advance.

     Can the HKSAR see a positive future within China? We recently published a short book, with Abbreviated Press in Hong Kong, entitled, No Third Person: Rewriting the Hong Kong Story, to address this question (see: http://www.abbrv.press/nothirdperson.html. Available from the Book Depository: https://www.bookdepository.com/No-Third-Person-Christine-Loh/9789881662965). We felt there remained a need for a further, more thorough discussion about Hong Kong’s future. We have now published an extended online review of this key question entitled, Hong Kong in China with the IPP Review in Singapore (see: https://ippreview.com/index.php/Index/company/name/about.html). This translated version of Hong Kong in China is enabled by the generous agreement of Abbreviated Press and the IPP Review. (Sections within Hong Kong in China repeat text and arguments found in No Third Party.)

      The last British Governor of Hong Kong, Chris Patten noted, in 1996, that "The world should want China to succeed as it continues its brave economic revolution." We agreed with that view then and we agree with it today. In this work, serialized in three parts in the IPP Review, we explain why Hong Kong remains exceptionally well placed to continue to shape its own positive future, within China, just as it has done, with such remarkable success, in the past.

     Part 1 of Hong Kong in China provides a general introduction of the historical background of Hong Kong seen from British and Chinese perspectives over the last two centuries. It also explains the constitutional and legal structure of Hong Kong’s reversion to Chinese sovereignty and considers how this regime has operated when placed under stress. Part 2 sets out Hong Kong’s economic fundamentals and also reviews the geo-political stresses affecting the Hong Kong – mainland relationship. Part 3 investigates how Hong Kong can get unstuck and – building on this – how Hong Kong can construct its new narrative – the story of Hong Kong in China.

      We owe thanks to a range of people who have advised and commented on this work. These include, Professor Albert Chen and Professor Fu, Hualing from The University of Hong Kong and Professor Harry Glasbeek, Emeritus Professor, Osgoode Hall Law School, Toronto, Canada. We owe special thanks to Professor Wei Leijie and his team from Xiamen University in China who have undertaken this translation. The authors, alone, are responsible for all that is argued in this book and for any errors and omissions.

Preface by Professor Albert Chen.

Introduction of Preface: A "Post-National Security Law Era" Narrative for Hong Kong

What is "one country, two systems"? How should we understand the relationship between the "high degree of autonomy" of the Hong Kong Special Administrative Region (HKSAR), state sovereignty and the central authorities’ “comprehensive jurisdiction” over the HKSAR? What should be the identity of Hong Kong people? What kind of discourse or narrative should there be about the "Hong Kong Story"?  How should Hong Kong’s past be understood? What kind of future will Hong Kong have?  How could the path of "one country, two systems" proceed?

     In the "post-National Security Law era", this series of issues is more urgent than at any other time in history, and they are causing anxiety among many Hong Kong people. Although this book was written before the enactment of the HKSAR National Security Law, it has fleshed out these issues and provided preliminary answers to them.

      In fact, I believe that in the "post-National Security Law era", this book is more meaningful, valuable and enlightening to us than it was at the time of its writing.  The authors are Christine Loh and Richard Cullen.  Loh is a public figure in Hong Kong, having served as a member of the Hong Kong Legislative Council before and after reunification, and as Undersecretary for the Environment of the HKSAR Government.  Loh is also a scholar and has written many books. Cullen, from Australia, has taught at the School of Law of City University of Hong Kong for many years, and in recent years at the Faculty of Law of The University of Hong Kong. Both authors are intellectuals who have long lived in Hong Kong, served Hong Kong and love Hong Kong. This book is the culmination of years of their reflections on Hong Kong's situation under "one country, two systems", and on the "Hong Kong story". 

Praise from the Dean Professor Fu Hualing (in Chinese):

「這本書提醒讀者香港憲制的歷史是世界歷史和中國歷史的一個小插曲。近二十年來有關一國兩制的爭論和衝突只有放在中國和世界的視野下才會有真正的意義—它們主要是世界格局的變化在香港引發的陣痛。應對速變是香港的宿命，而香港從來都能把握好危機中的機會。本書正是告訴讀者香港的將來在中國、中國的將來在世界。把握好這個機遇，香港依然是中國走向世界的橋樑。」
    傅華伶
    香港大學 法律學院教授，院長

Lin Yang (current PhD) on China’s Three Internet Courts (Amicus Curiae)

"China’s Three Internet Courts"
Lin Yang (Currently PhD candidate, supervisor: Professor Zhao Yun)
in Amicus Curiae, Series 2, Vol 2, No 3, 531-538
Published in 2021

Introduction: With arguably the most developed e-commerce business in the world, the People’s Republic of China has recently set up several Internet Courts to handle internet-related cases. Alongside this new development in information technology use by the Chinese judiciary, there have also been reforms in the direction of ‘diversified dispute resolution’ processes, encouraging greater processual pluralism. The development of internet courts is part of China’s larger project of ‘judicial reform’ and combines deployment of new information and communication technologies. The internet and other information technology tools are used to handle litigation more efficiently and are also seen as contributing to the building of a more pluralistic dispute resolution system. China’s Supreme People’s Court in particular is encouraging digitization and utilization of cyberspace and technologies such as blockchain and cloud computing to streamline the handling of cases within China’s vast court system. China established three Internet Courts in Hangzhou, Beijing and Guangzhou on 18 August 2017, 9 September 2018 and 28 September 2018, respectively. The emergence of Internet Courts as sites of court ‘informatization’ and multiple processes of dispute resolution has led to new discussions within China about such issues as potential challenges to the traditional rules of judicial adjudication, and how best to integrate emerging technologies with the processes of trial and adjudication in the court.