A stroke of genius in Kong Yunming

When Kong Yunming was decided by the lower courts, it neither occurred to the Court of First Instance nor the Court of Appeal that Art 36 of the Basic Law could be argued to imply that the “right to social welfare” conferred therein on Hong Kong residents can be “concretised” to mean the social welfare benefits that Hong Kong residents enjoyed immediately before the 1997 handover in accordance with the laws or policies prevailing at that time. The “stroke of genius” in the Court of Final Appeal’s decision was to define precisely the substantive content and scope of the social welfare right protected by Art 36, at least as far as social security in the form of cash assistance for the needy such as the Comprehensive Social Security Assistance scheme was concerned. This was achieved by reading Art 36 and Art 145 of the Basic Law as a whole, so as to import from Art 145 into Art 36 the level of social welfare provisions as they existed immediately before the 1997 handover. This comment will focus on this adoption of the level or content of social welfare rights as of 1997 as the baseline for the protection of social welfare rights under the Basic Law, and assess it by comparing it with the approach adopted by the lower courts in this case, and with overseas jurisprudence on the constitutional protection of socio-economic rights.published_or_final_versio

Another case of conflict between the Court of Final Appeal and the NPC Standing Committee?

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A New Era in Hong Kong's Constitutional History

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The "Foreign Domestic Helpers Case": The relevance of the NPCSC Interpretation of 1999 and the Preparatory Committee Opinion of 1996

One of the issues raised by the Vallejos case (the Foreign Domestic Helpers Case) is to what extent, if any, the fundamental legal issues which the court was called upon to decide in this case had already been dealt with by the National People's Congress Standing Committee when it issued its first Interpretation of the Basic Law in June 1999. This article discusses the relevance to this case of the 1999 Interpretation and the Preparatory Committee's Opinion which it referred to. It suggests that these documents enable us to have a better and fuller understanding of the legislative intent behind Art 24(2) of the Basic Law. Such legislative intent is consistent with, and converges with, the common understanding of the Chinese and British Governments of the intent behind the relevant provisions in the Sino-British Joint Declaration of 1984 that correspond to Art 24(2). The intent was to set out the basic principles governing permanent resident status and right of abode in the HKSAR, and to confer on the legislature of the HKSAR a broad power and a wide margin of appreciation in implementing and elaborating such basic principles by more detailed legislative rules.postprin

The Global Expansion of Constitutional Judicial Review: Some Historical and Comparative Perspectives

Essays in commemoration of the seventieth birthday of Professor Osanai SatoruModern constitutional law has developed various means of supervising and guaranteeing the effective implementation of the constitution. The principal means of judicial control of constitutionality is judicial review of the constitutionality of legislation enacted by Parliament, or constitutional judicial review. This has become a dominant feature of modern constitutionalism, and recent decades have seen a global expansion of such judicial review mechanisms. This article considers the phenomenon and institution of constitutional judicial review from historical and comparative perspectives. The different models, structures and forms of constitutional judicial review are discussed with reference to the historical contexts in which they have evolved, their modes of operation and their underlying rationales. The possible tension between constitutional judicial review and democracy is also considered.preprin

Constitutions and Constitutional Practice in East Asia

The constitutions and constitutional practice of states in East and Southeast Asia provide worthwhile case studies for scholars of comparative constitutional law, constitutional theory and politics. This paper seeks to provide a conceptual framework for such comparative studies, and discusses some key components of the existing literature on this subject. It is hoped that the paper can serve as a point of departure or guide for further research into the topic. East Asia is a region characterized by great ethnic, cultural, religious and linguistic diversities, different levels of economic development, and large variations in the types of political regimes that have existed or are now prevalent. This is highly relevant to the study of Asian constitutionalism, as constitutional law is bound up with history and politics. All states in East Asia have adopted written constitutions in modern times, but the nature, purposes and functions of these constitutions vary according to the nature and character of the political regimes in which they exist. This paper will therefore begin with a discussion of the types of regimes that have existed in modern East Asia, before proceeding to investigate the relationship between constitutions and regime types.postprin

Constitutional developments in autumn 2009

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An unexpected breakthrough in Hong Kong's constitutional reform

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The concept of 'Datong' in Chinese philosophy as an expression of the idea of the Common Good

The concept of 'datong' in Chinese philosophy was developed more than two millennia ago in the Confucian classics. It has been translated as 'Great Unity', 'Great Community', 'Great Universality', 'Great Similarity', 'Grand Harmony', etc. In the 'Liyun' section of Liji the Book of Rites, the concept of 'datong' was first introduced. In the early twentieth century, the great Chinese thinker and reformer Kang Youwei wrote a book entitled Datong shu (Book on the Great Community) in which he put forward an original and radical interpretation of 'datong'. This paper will analyze the concept of 'datong' in Liyun and in Kang’s Datong shu, and suggest that the concept is an expression of the idea of the common good in traditional Chinese social and political philosophy. It will examine and reflect on Kang’s Datong shu and the elements of Confucianism, Buddhism, liberalism, utilitarianism, utopianism and socialism/communism that can be found in the book. It will also show that the ideology currently propounded by the Chinese Communist Party, including the ideas of the 'preliminary stage of socialism' and the 'xiaokang society', may be better understood in the light of the concept of 'datong' in Chinese philosophy.postprin

Hong Kong's Political Crisis of July 2003

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