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27 results

Page 1 of 2

  • 4 - Constitutions and Constitutionalism: China

  • from II - Concepts and Definitions
  • Edited by David S. Law, University of Virginia
  • Book:
    Constitutionalism in Context
    Published online:
    17 February 2022
    Print publication:
    17 February 2022, pp 61-86

  • Summary

    The ideas and practices of constitutions and constitutionalism were first imported into China in the late 19th century. There were three eras of constitution-making in modern Chinese history: the last decade of Qing imperial rule, the republican era, and the communist era. Dr Sun Yat-sen, founding father of the Republic of China (RoC), developed a three-stage theory of China’s political development in which the last stage was to be constitutionalism (xianzheng). Although this was realized in theory when the RoC Constitution of 1946 was enacted, the Constitution became largely suspended as the RoC regime moved to Taiwan and introduced martial law after its defeat by the Communists in the Chinese Civil War. The People’s Republic of China (PRC) was established in the Mainland, which witnessed a new era of constitution-making under the Soviet Union’s influence. However, even today, the discussion of “constitutionalism” (xianzheng) is still discouraged by the PRC regime, although the concepts of the (socialist) Rule of Law and human rights have been affirmed by constitutional amendments. This chapter will review and assess the history of constitution-making in modern China and the discourse of constitutional law scholarship in contemporary China, and it will explore how the case of China both illuminates and challenges conventional understandings of the meaning and significance of constitutions and constitutionalism in the contemporary world.

  • 8 - The Constitutional Orders of ‘One Country, Two Systems’

  • from Part II - The View from Asia Pacific and the Middle East
  • Edited by Rosalind Dixon, University of New South Wales, Sydney, Adrienne Stone, University of Melbourne
  • Book:
    The Invisible Constitution in Comparative Perspective
    Published online:
    02 November 2018
    Print publication:
    08 November 2018, pp 230-267

  • Summary

    Hong Kong and Macau’s legal systems were based on that of Britain and Portugal respectively before their handover to China. In 1997 and 1999 respectively, new constitutional instruments known as Basic Laws drafted and adopted by the Chinese Central Authorities came into force in Hong Kong and Macau. The texts of the two Basic Laws, both enacted to implement the Chinese project of “One Country, Two Systems”, were very similar. After the handover, courts in both jurisdictions have engaged in constitutional review and have developed some kind of proportionality analysis in evaluating the validity of legislative and administrative acts against the provisions of the Basic Law. This chapter explores the ‘visible’ and ‘invisible’ bases of constitutional judicial review in post-colonial Hong Kong and Macau. It compares the practices of such review in these two Special Administrative Regions of China, and demonstrates that the differences are largely attributable to the ‘invisible’, rather than the ‘visible’, basis of constitutional review, and that such ‘invisible’ basis is to a significant extent determined by the different legal traditions of the two former colonies, and probably to some extent also shaped by the values of and choices made by the judicial elites of the two territories.

Constitutional Courts in Asia
  • A Comparative Perspective
  • Edited by Albert H. Y. Chen, Andrew Harding
  • Published online:
    17 September 2018
    Print publication:
    20 September 2018
  • The founding of a constitutional court is often an indication of a chosen path of constitutionalism and democracy. It is no coincidence that most of the constitutional courts in East and Southeast Asia were established at the same time as the transition of the countries concerned from authoritarianism to liberal constitutional democracy. This book is the first to provide systematic narratives and analysis of Asian experiences of constitutional courts and related developments, and to introduce comparative, historical and theoretical perspectives on these experiences, as well as debates on the relevant issues in countries that do not as yet have constitutional courts. This volume makes a significant contribution to the systematic and comparative study of constitutional courts, constitutional adjudication and constitutional developments in East and Southeast Asia and beyond.

Constitutionalism in Asia in the Early Twenty-First Century
  • Edited by Albert H. Y. Chen
  • Published online:
    05 July 2014
    Print publication:
    17 April 2014
  • Examining developments in the first decade of the twenty-first century, this authoritative collection of essays studies the evolving practice of constitutional law and constitutionalism in Asia. It provides a comprehensive overview of the diverse constitutional issues and developments in sixteen East, Southeast and South Asian countries. It also discusses the types of constitutionalism that exist and the general trends in constitutional developments whilst offering comparative, historical and analytical perspectives on Asian constitutionalism. Written by leading scholars in the field, this book will be of great interest to students and scholars alike.

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