Eric C. Ip

The Evolution of Constitutional Adjudication in the Chinese Special Administrative Regions: Theory and Evidence

Under what conditions will two sub-national supreme courts diverge fundamentally in their understandings of, and approaches toward, constitutional adjudication, in spite of being invested with identical jurisdictions and overseen by a shared sovereign, within roughly the same time frame? China’s two autonomous Special Administrative Regions (SARs), Hong Kong and Macau, possess constitutional frameworks that are nearly the same, yet their paths of judicial review of legislation could not be more different. While the Chinese SARs commonly feature undivided governments returned by rigged electoral systems dominated by the pro-establishment blocs in their respective polities, the Hong Kong Court of Final Appeal has repeatedly nullified unconstitutional acts of the legislature with finality, while the Macau Tribunal de U´ltima Instaˆncia has never challenged the validity of legislation at all. This study argues that such divergence can hardly be blamed on the differences between Hong Kong’s English common law and Macau’s Portuguese civil law heritages. It reveals, with the aid of a theoretical framework that integrates the concept of transaction costs into the strategic model of judicial review, that factional infighting inside, and formidable popular resistance against, Hong Kong’s ruling elite have disabled the government to credibly threaten the Court while reinforcing demand for judicial review of unpopular statutes. By contrast, high levels of executive-legislative harmony, minimal popular unrest, and weak pressures to democratize have rendered it very difficult for the Macau Tribunal to defy its government with impunity. Overall, this study contributes to several increasingly important academic fields, including comparative Chinese law, sub-national constitutional law, and judicial review in authoritarian polities.

A Positive Theory of Constitutional Judicial Review: Evidence from Singapore and Taiwan

The consensus over independent constitutional judicial review – that it inevitably stems from electoral and inter-branch competition – has been weakened by recent empirical discoveries; however, empiricists have yet to offer a coherent explanation why non-competitive, authoritarian, governments would tolerate constitutional courts that strike down their legislation. This article proposes a “Constitutional Investment Theory” that solves this puzzle: expressive symbolism is central to these regimes’ calculus for acquiescing in the activation of judicial review; the variable perdurability of judicial review depends on how much trust the regime invest in the judiciary; and activism in judicial review is the likelier to emerge the higher the transaction costs of retaliating against offending courts. Evidence from Singapore and pre-2000 Taiwan lends support to this theory.

Doctrinal Antithesis in Anglo-American Administrative Law

English administrative law guards judicial supremacy over all matters of statutory interpretation, while instructing judges to refrain from scrutinizing administrators’ factual findings. By contrast, American federal courts are obliged to respect agencies’ statutory-interpretive autonomy, but take a rigorous “hard look” at substantial agency factual determinations. This Article argues that the antithetical approaches to judicial review of administrative action adopted by the apex courts of the United Kingdom and the United States can be adequately explained by the polarization of these two polities along a spectrum of effective vetogates.

COMPARATIVE SUBNATIONAL FOREIGN RELATIONS LAW IN THE CHINESE SPECIAL ADMINISTRATIVE REGIONS

The increasing importance of subnational governments in interstate affairs calls for international and comparative law scholars to take subnational foreign relations law more seriously. This article conceives this law as the legal rules that regulate the vertical allocation of foreign relations powers within and across States, and constructs an analytical framework that addresses the questions of why any sovereign would grant extensive foreign relations powers to constituent entities and how such an arrangement plays out in actual practice. This study takes a comparative approach to case studies of the Special Administrative Regions (SARs) of the Peoples Republic of China: Hong Kong and Macau, which are known for their unusually extensive paradiplomatic powers, which not only defy conventional categories but also surpass those of other substates.