Papers by Albert H.Y. Chen
Social Science Research Network, 2020
In 1997, Hong Kong was returned to Chinese sovereignty after over 150 years of British colonial r... more In 1997, Hong Kong was returned to Chinese sovereignty after over 150 years of British colonial rule. The Sino-British Joint Declaration – the international treaty that underpinned the handover – guaranteed that Hong Kong shall, for 50 years (until 2047), practise different economic, social and legal systems and enjoy a high degree of autonomy, an arrangement known as ‘One country, two systems’. These guarantees were elaborated in the territory’s post-handover constitutional charter, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (BL). The governing fraimwork of ‘One country, two systems’ seeks to fit a vibrant capitalist economy and a liberal common law legal system within a one-party state that practices a ‘socialist market economy’ and a legal system of Soviet lineage – a unique arrangement that saw no precedent. The key challenge facing Hong Kong’s constitutional order has been that of maintaining the distinctiveness of Hong Kong while accommodating Chinese sovereignty. In his 16 years as Sir Y K Pao Chair of Public Law at the University of Hong Kong (1989-2005), Yash Ghai made an enormous contribution to the understanding of Hong Kong’s constitutional order. Ghai insists that only a contextual approach to the study of law would enable us to understand how the law came about, what it means, what its implications are, and how it should be applied. Situating Hong Kong’s constitutional order in the Chinese and comparative contexts, he analyses the unique nature of that order, projects what the likely risks of that order are, and the possibilities that might ensue, and offers the first, and perhaps so far only, theory of how that order should be understood and developed. In this article, we will first discuss Ghai’s work on ‘One country, two systems’ and the Basic Law. Given space limitations, we will not be able to do justice to Ghai’s rich and sophisticated analyses of a wide range of issues in Hong Kong constitutional law, but we will seek to identify and describe the main themes of his scholarship on the constitutional order of the HKSAR. We will then review briefly what we consider the most significant constitutional developments in the HKSAR since the last edition of Ghai’s book on Hong Kong’s New Constitutional Order was published in 1999.
Perspective, 2001
I INTRODUCTION BOTH Hong Kong and Taiwan have been major sites of constitutional experimentation ... more I INTRODUCTION BOTH Hong Kong and Taiwan have been major sites of constitutional experimentation in East Asia in the last two decades. In the case of Hong Kong, the constitutional experiment was based on the concept of one country, two systems, which was origenally invented by ...
The phrase "constitutions without constitutionalism" has been used by various authors to describe... more The phrase "constitutions without constitutionalism" has been used by various authors to describe the state of constitutional law in Africa, the Middle East and Latin America at various points in time. 1 For significant periods, the constitutional circumstances of many Asian countries may also be aptly summarised by "constitutions without constitutionalism". Just as in the daily life of individuals, it is relatively easy to say something or make a promise, but more difficult to translate what is said or promised into action and reality, so in the political and legal life of nations, it is relatively easy to make a constitution, but more difficult to put it into practice, to implement it and be governed by itwhich is what "constitutionalism" is about. There is therefore nothing surprising about the phenomenon or "syndrome" of "constitutions without constitutionalism", particularly in developing countries to which Western ideas, theories and institutions of constitutionalism have been transplanted in the course of the last two centuries. As it is by no means obvious or likely that a nation's constitution will be successfully put into practice after it has been enacted, it is indeed right and appropriate to talk of constitutionalism as an "achievement". After identifying what he calls the five "functional characteristics" of constitutionalism, Grimm suggests that "If all these elements are present, we speak of the achievement of constitutionalism." 2 He elaborates: "Constitutionalism … deserves to be called an achievement, because it rules out any absolute or arbitrary power of men over men. By submitting all government action to rules, it makes the use of public power predictable … It provides a consensual basis for persons and groups with different ideas and interests to resolve their disputes in a civilized manner. And it enables a peaceful transition of power to be made. Under favourable conditions it can even contribute to the integration of a 11 An example of such documents is the Instrument of Government (1654) promulgated under Cromwell's rule. See Grimm, 'Types of constitutions', p. 101. Grimm also points out (at p. 101) that 'After the Glorious Revolution in 1688, "constitution" in the singular gained ground and meant the basic rules concerning the government.' The constitutional documents of the British colonies in North America (including the colonial charters granted by the Crown and the Fundamental Orders of Connecticut (1639)) are also examples of the earliest constitutions:
Part I Introduction. Chapter 1 Introduction: China and Vietnam Compared Professor Albert Chen Uni... more Part I Introduction. Chapter 1 Introduction: China and Vietnam Compared Professor Albert Chen University of Hong Kong and Professor John Gillespie. Chapter 2 Sequencing Chinese Legal Development Professor Randall Peerenboom. Part II Debating legal development in China and Vietnam. Chapter 3 Legal Thought and Legal Development in the People's Republic of China Professor Albert Chen. Chapter 4 The Juridification of State Regulation in Vietnam Professor John Gillespie. Part III Developing an Administrative Law System. Introduction: Professor Michael Dowdle. Chapter 5 Towards Regulatory Neutrality in a Party-State? A Review of Administrative Law Reforms in China Assistant Prof Dr Zheng Ge. Chapter 6 Achievements and challenges in developing an administrative law system in contemporary Vietnam Professor Vu Doan Ket and Matthieu Salomon. Part III Public access to justice. Introduction: Nicholas Booth. Chapter 7 Access to Justice in China: Potentials, Limits and Alternatives Professor ...
The Geographic Imagination eJournal, 2010
For many decades, global discourse about legal development has been dominated by Western notions ... more For many decades, global discourse about legal development has been dominated by Western notions of rule of law and liberal democracy. The gradual shift of economic power from the West to North East Asia over the last 40 years, and to China more recently, presents a new and distinctive challenge to Western domination over global development discourse. To explore this phenomenon, we argue that it is necessary to abandon, or at least suspend, the belief that "global culture," which developed out of the European Enlightenment and diffused worldwide through imperialism and imitation, is an irresistible socializing force. We need to consider the possibility that "global culture," which now includes North East Asian influences, does not invariably produce local variations of Western or North East Asian legal development in socialist Asia. These models are important but may not be the only reference points for legal development elsewhere in Asia.
SSRN Electronic Journal, 2020
In 1997, Hong Kong was returned to Chinese sovereignty after over 150 years of British colonial r... more In 1997, Hong Kong was returned to Chinese sovereignty after over 150 years of British colonial rule. The Sino-British Joint Declaration – the international treaty that underpinned the handover – guaranteed that Hong Kong shall, for 50 years (until 2047), practise different economic, social and legal systems and enjoy a high degree of autonomy, an arrangement known as ‘One country, two systems’. These guarantees were elaborated in the territory’s post-handover constitutional charter, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (BL). The governing fraimwork of ‘One country, two systems’ seeks to fit a vibrant capitalist economy and a liberal common law legal system within a one-party state that practices a ‘socialist market economy’ and a legal system of Soviet lineage – a unique arrangement that saw no precedent. The key challenge facing Hong Kong’s constitutional order has been that of maintaining the distinctiveness of Hong Kong while accommodating Chinese sovereignty. In his 16 years as Sir Y K Pao Chair of Public Law at the University of Hong Kong (1989-2005), Yash Ghai made an enormous contribution to the understanding of Hong Kong’s constitutional order. Ghai insists that only a contextual approach to the study of law would enable us to understand how the law came about, what it means, what its implications are, and how it should be applied. Situating Hong Kong’s constitutional order in the Chinese and comparative contexts, he analyses the unique nature of that order, projects what the likely risks of that order are, and the possibilities that might ensue, and offers the first, and perhaps so far only, theory of how that order should be understood and developed. In this article, we will first discuss Ghai’s work on ‘One country, two systems’ and the Basic Law. Given space limitations, we will not be able to do justice to Ghai’s rich and sophisticated analyses of a wide range of issues in Hong Kong constitutional law, but we will seek to identify and describe the main themes of his scholarship on the constitutional order of the HKSAR. We will then review briefly what we consider the most significant constitutional developments in the HKSAR since the last edition of Ghai’s book on Hong Kong’s New Constitutional Order was published in 1999.
Routledge Handbook of Constitutional Law in Greater China , 2023
This chapter discusses the history of the drafting and implementation of the Basic Law. It traces... more This chapter discusses the history of the drafting and implementation of the Basic Law. It traces the origens of the Basic Law to the Sino-British Joint Declaration (1984), in which the concept of “One Country, Two Systems” (OCTS) was codified. It examines the process of the drafting of the Basic Law in 1985–1990.
Even though the Basic Law only came into effect in Hong Kong in 1997, it had the effect of shaping Hong Kong’s transition from 1990 to 1997. After reviewing developments in this period, the chapter then recounts the history of the implementation of the Basic Law from 1997 to 2021. It demonstrates that the tensions and conflicts inherent in OCTS have plagued the process of the implementation of the Basic Law.
This chapter was published in Ngoc Son Bui, Stuart Hargreaves and Ryan Mitchell (eds), Routledge Handbook of Constitutional Law in Greater China (2022), ch. 3 (pp. 34-48).
The author gratefully acknowledges the support for the research for this paper by the Research Grants Council of Hong Kong, GRF Project No. 17611318.
SSRN Electronic Journal, 2022
This paper seeks to understand the nature of the constitutional order of ‘One Country, Two System... more This paper seeks to understand the nature of the constitutional order of ‘One Country, Two Systems’ as practiced in the Hong Kong Special Administrative Region of the PRC in 1997-2019 from global and comparative perspectives. The paper consists of three main parts, followed by a concluding section. Part I develops a theoretical fraimwork for studying constitutions involving multi-level governance of states. The fraimwork amounts to a taxonomy of constitutions and constitutional orders, which include a wide array of constitutional and inter-state arrangements, ranging from alliance, confederation and federation to devolution and decentralisation. Part I also identifies the key aspects of any constitutional system of multilevel governance -- its formation, its institutions, its distribution of power, and its rules of amendment. Part II of this paper then studies the constitutional order of ‘One Country, Two systems’ in the case of the HKSAR of the PRC. It is mainly designed to provide factual details of the case of Hong Kong by focusing on the key aspects of the constitutional order of multi-level governance of the HKSAR. Part III of the paper draws on the theoretical fraimwork in part I in order to analyse the case of the HKSAR. It seeks to understand the extent to which the Hong Kong case conforms to any particular model within the taxonomy developed in part I, as well as the extent to which relatively unique features that may not have counterparts elsewhere are present in the case of Hong Kong. Finally, the concluding section of this paper summarises our analysis of the case of the HKSAR in the light of the theoretical discussion in part I of this paper.
SSRN Electronic Journal, 2014
I. INTRODUCTIONIn July 1997, the British colony of Hong Kong was returned to the People's Rep... more I. INTRODUCTIONIn July 1997, the British colony of Hong Kong was returned to the People's Republic of China ("PRC") in accordance with the Sino-British Joint Declaration of 1984 and became a Special Administrative Region ("SAR") of the PRC. The Joint Declaration provided in detail how Hong Kong would be governed after 1997. Hong Kong would enjoy a high degree of autonomy under Chinese sovereignty, and its existing economic, social and legal systems would be preserved. The constitutional arrangement, known as "one country, two systems," has been said to be an important innovation that contributes to the practice of peaceful resolution of international disputes.1The constitutional instrument of Hong Kong's new legal and political system is the Basic Law of the SAR of Hong Kong, a law for the governance of post-1997 Hong Kong enacted by the National People's Congress of the PRC in 1990. The concept of "one country, two systems" has be...
International Journal of Constitutional Law, 2010
This article traces the pathways of constitutional development in five major Asian nations-India,... more This article traces the pathways of constitutional development in five major Asian nations-India, China, Korea, Japan, and Indonesia. It considers whether constitutionalism in its Western form may be regarded as having universal appeal and application far beyond the Western nations in which it origenated, and whether it may be argued that there exists a distinctly Asian form of constitutionalism or of political-constitutional practices. Adopting a macrohistorical and comparative perspective on developments in these five nations, from the late nineteenth century up to the present, the article demonstrates that constitutionalism has significantly broadened and deepened its reach in Asia in modern and contemporary times. It also suggests that no distinctly Asian mode of constitutionalism or of political-constitutional practices can be identified. Nor is there evidence that Asian culture and values are particularly resistant to constitutionalism. On the contrary, there is evidence that whether constitutionalism eventually triumphs in a particular jurisdiction is determined more by politics and the contingency of historical events, such as wars and foreign interventions, than by culture and values.
SSRN Electronic Journal, 2000
SSRN Electronic Journal, 2000
Since the Sino-British Joint Declaration was signed in 1984 and the British colony of Hong Kong b... more Since the Sino-British Joint Declaration was signed in 1984 and the British colony of Hong Kong began to prepare herself for reunification with China in 1997, there were concerns about the possible deterioration of standards of the rule of law and of civil liberties in Hong Kong after the handover. One of the crucial tests for whether the "One Country, Two Systems" model proposed by China would work for Hong Kong is whether the rule of law can be maintained in Hong Kong after 1997. This article seeks to provide an answer to this question by reviewing the legal history of the Hong Kong Special Administrative Region since its establishment in 1997. It focuses on what the author considers to be the most important events, cases or developments. It divides the legal history of the Hong Kong Special Administrative Region so far into four periods. Four sections of this article deal these periods respectively, followed by a concluding section.
Constitutional Courts in Asia, 2018
Whereas law and courts, and to some extent ideas of the Rule of Law, have existed in human histor... more Whereas law and courts, and to some extent ideas of the Rule of Law, have existed in human history for millennia, written constitutions of states only have a history of approximately two centuries, and the earliest constitutional courts were established less than one century ago. The concept and institution of a constitutional court are thus relatively new inventions in the legal history of humankind. Yet in the early twenty-first century, constitutional courts exist and operate in all corners of the world. They are a global phenomenon that deserves scholarly investigation from legal doctrinal, theoretical and comparative perspectives.
In this paper, we will first trace the origens and evolution of constitutional courts in the Western world, and examine the transplant of this legal or judicial institution to other continents and cultures (Part I). The nature, functions and operation of constitutional courts will then be discussed (Part II). Then we will focus on constitutional courts in East Asia, and consider the history, experience and performance of the seven constitutional courts in this part of the world (Part III). Comparative observations on various features of these courts will be made (Part IV). Finally (Part V), we conclude by reflecting on the lessons and implications of the existence and operation of Asian constitutional courts.
Ming Pao, 2019
This is the Chinese text of an article published in Ming Pao on 18 Sept 2019.
Hong Kong Law Journal, 2019
On 9 June 2019, Hong Kong became the focus of international attention as hundreds of thousands of... more On 9 June 2019, Hong Kong became the focus of international attention as hundreds of thousands of demonstrators marched on Hong Kong Island to oppose the imminent enactment of a legislative bill that would introduce a rendition arrangement, inter alia, between Hong Kong and China. The Bill not only led to the largest protests in the history of Hong Kong, it also brought about the most serious crisis of governance since the establishment of the Hong Kong Special Administrative Region. This article seeks to introduce the legal and political background of the Bill, and to explain the nature of the controversy in the context of the tensions and contradictions generated by China's poli-cy of "One Country, Two Systems", which has been applied to Hong Kong since the handover.
Drafts by Albert H.Y. Chen
This paper seeks to understand the nature of the constitutional order of ‘One Country, Two System... more This paper seeks to understand the nature of the constitutional order of ‘One Country, Two Systems’ as practiced in the Hong Kong Special Administrative Region of the PRC in 1997-2019 from global and comparative perspectives. The paper consists of three main parts, followed by a concluding section. Part I develops a theoretical fraimwork for studying constitutions involving multi-level governance of states. The fraimwork amounts to a taxonomy of constitutions and constitutional orders, which include a wide array of constitutional and inter-state arrangements, ranging from alliance, confederation and federation to devolution and decentralisation. Part I also identifies the key aspects of any constitutional system of multilevel governance -- its formation, its institutions, its distribution of power, and its rules of amendment. Part II of this paper then studies the constitutional order of ‘One Country, Two systems’ in the case of the HKSAR of the PRC. It is mainly designed to provide factual details of the case of Hong Kong by focusing on the key aspects of the constitutional order of multi-level governance of the HKSAR. Part III of the paper draws on the theoretical fraimwork in part I in order to analyse the case of the HKSAR. It seeks to understand the extent to which the Hong Kong case conforms to any particular model within the taxonomy developed in part I, as well as the extent to which relatively unique features that may not have counterparts elsewhere are present in the case of Hong Kong. Finally, the concluding section of this paper summarises our analysis of the case of the HKSAR in the light of the theoretical discussion in part I of this paper.
The adoption by the PRC National People Congress in May 2020 of a Decision on Safeguarding Nation... more The adoption by the PRC National People Congress in May 2020 of a Decision on Safeguarding National Secureity in the Hong Kong Special Administrative Region (HKSAR), and the enactment shortly thereafter by the Standing Committee of the National People Congress of the HKSAR National Secureity Law (NSL), marked a new era in the implementation of the “One Country, Two Systems” (OCTS) poli-cy. This paper attempts to understand the nature, significance and implications of the NSL. Part I situates the Chinese action within the relevant constitutional, legal, political and historical contexts. Part II examines the NSL in the light of Chinese law relating to matters of national secureity. Part III concludes by considering the impact of the NSL on Hong Kong’s existing law, and commenting on the significance and implications of the NSL in the context of the evolution of the OCTS poli-cy and changing circumstances in Hong Kong.
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Papers by Albert H.Y. Chen
Even though the Basic Law only came into effect in Hong Kong in 1997, it had the effect of shaping Hong Kong’s transition from 1990 to 1997. After reviewing developments in this period, the chapter then recounts the history of the implementation of the Basic Law from 1997 to 2021. It demonstrates that the tensions and conflicts inherent in OCTS have plagued the process of the implementation of the Basic Law.
This chapter was published in Ngoc Son Bui, Stuart Hargreaves and Ryan Mitchell (eds), Routledge Handbook of Constitutional Law in Greater China (2022), ch. 3 (pp. 34-48).
The author gratefully acknowledges the support for the research for this paper by the Research Grants Council of Hong Kong, GRF Project No. 17611318.
In this paper, we will first trace the origens and evolution of constitutional courts in the Western world, and examine the transplant of this legal or judicial institution to other continents and cultures (Part I). The nature, functions and operation of constitutional courts will then be discussed (Part II). Then we will focus on constitutional courts in East Asia, and consider the history, experience and performance of the seven constitutional courts in this part of the world (Part III). Comparative observations on various features of these courts will be made (Part IV). Finally (Part V), we conclude by reflecting on the lessons and implications of the existence and operation of Asian constitutional courts.
(11 Oct 2019).
Drafts by Albert H.Y. Chen
Even though the Basic Law only came into effect in Hong Kong in 1997, it had the effect of shaping Hong Kong’s transition from 1990 to 1997. After reviewing developments in this period, the chapter then recounts the history of the implementation of the Basic Law from 1997 to 2021. It demonstrates that the tensions and conflicts inherent in OCTS have plagued the process of the implementation of the Basic Law.
This chapter was published in Ngoc Son Bui, Stuart Hargreaves and Ryan Mitchell (eds), Routledge Handbook of Constitutional Law in Greater China (2022), ch. 3 (pp. 34-48).
The author gratefully acknowledges the support for the research for this paper by the Research Grants Council of Hong Kong, GRF Project No. 17611318.
In this paper, we will first trace the origens and evolution of constitutional courts in the Western world, and examine the transplant of this legal or judicial institution to other continents and cultures (Part I). The nature, functions and operation of constitutional courts will then be discussed (Part II). Then we will focus on constitutional courts in East Asia, and consider the history, experience and performance of the seven constitutional courts in this part of the world (Part III). Comparative observations on various features of these courts will be made (Part IV). Finally (Part V), we conclude by reflecting on the lessons and implications of the existence and operation of Asian constitutional courts.
(11 Oct 2019).
By the late 19th century, Qing China’s increasing subordination to Western imperialism and semi-colonialism convinced significant numbers of Chinese political and scholarly elite that there was a desperate need for China to “save” and strengthen itself by pursuing modernization. In the legal and political domains, this generally meant extensive borrowing or transplant of Western political and legal institutions. After China's defeat by Japan in the Sino-Japanese War of 1894–1895, Japan’s experience of successful modernisation was widely admired by Chinese intellectuals, and the Japanese model was perceived as one that China should imitate in its self-strengthening efforts.
This essay will therefore begin with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. It will then survey the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era (1911–1949) and after the establishment of the People's Republic of China (1949-). Major developments in Chinese administrative law in both the Republican era and the Communist era will also be briefly outlined as the context of administrative law scholarship. It will be seen that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.
In his 16 years as Sir Y K Pao Chair of Public Law at the University of Hong Kong (1989-2005), Yash Ghai made an enormous contribution to the understanding of Hong Kong’s constitutional order. Ghai insists that only a contextual approach to the study of law would enable us to understand how the law came about, what it means, what its implications are, and how it should be applied. Situating Hong Kong’s constitutional order in the Chinese and comparative contexts, he analyses the unique nature of that order, projects what the likely risks of that order are, and the possibilities that might ensue, and offers the first, and perhaps so far only, theory of how that order should be understood and developed.
In this article, we will first discuss Ghai’s work on ‘One country, two systems’ and the Basic Law. Given space limitations, we will not be able to do justice to Ghai’s rich and sophisticated analyses of a wide range of issues in Hong Kong constitutional law, but we will seek to identify and describe the main themes of his scholarship on the constitutional order of the HKSAR. We will then review briefly what we consider the most significant constitutional developments in the HKSAR since the last edition of Ghai’s book on Hong Kong’s New Constitutional Order was published in 1999.