Anticipating Hong Kong's Constitution from a U.S. legal perspective.

• Author: Rogers, John M.
• Position: Hong Kong's Reintegration into the People's Republic of China: Constitutional Issues, Policy Approaches & Human Rights Concerns, and Economic & Legal Implications

1. INTRODUCTION

   What will be the constitution of Hong Kong after July, 1997?

   As with so many simple questions about China, the terms here need to be defined and refined to such an extent that the bottom line answer is not very satisfying. Depending on what is meant by the word "constitution," the answer to this question is either largely unpredictable or relatively insignificant. Coming to this conclusion, however, can be rewarding, as the path that takes us inexorably to such an unsatisfying answer can offer an insightful perspective on the nature of constitutions.

2. DEFINING WHAT IS A CONSTITUTION

   1. Three Different Meanings

      The word "constitution" can be defined in three ways: (1) how the political body is put together; (2) an allocation of powers and rights in a written document, and (3) a referent for disputes.

      In one sense the "constitution" of a political body is simply a way of stating how the body is put together. It is how the body is actually "constituted." In this sense every political body, and accordingly every state, has a constitution. A person or institution within the state who effectively exercises a certain kind of power has such power because of the constitution of that state. If some document states that the power lies elsewhere, then the document is to that extent not the constitution as so defined, since the document does not accurately reflect how the state is actually constituted.

      In another commonly used sense, a "constitution" is simply a document that allocates powers and rights in a political body. Thus, there are works that compile constitutions of the world: works that are collections of such documents.(1) We can state meaningfully that the People's Republic of China has, in its history, adopted four constitutions. Amendments to a constitution are amendments to the document. A constitution consists of words in articles and amendments.

      Finally, we can think of a constitution as a kind of fundamental political agreement. The elements of a political society that hold power agree that decisions will be made in a certain way, by certain officials, institutions, or bodies. The terms of the agreement may be written or not. The agreement may be changed by express or implicit agreement. The agreement may be abolished or superseded by express or implicit agreement. Moreover, the agreement may be violated, even repeatedly. But as long as such an agreement serves as a fundamental referent for disputes among the elements that have power in the political society, one can speak of it as a constitution.

      In the United, States, it is frequently unnecessary to distinguish among these different meanings of the word "constitution." This is because the document that is known as the U.S. Constitution is remarkably consistent with the allocation of powers and rights that actually exists in the nation, and because there is widespread acceptance of the idea that the terms of the document are the ultimate determinant for resolving disputes.

      For example, under the U.S. Constitution, may a thirty-year-old individual serve as President of the United States? The answer is simply "no." There is no need to define precisely the meaning of the term "U.S. Constitution." since the answer is the same regardless. Historically, there has never been political support for such a young presidential candidate, the terms of the document prohibit it,(2) and if a thirty-year-old individual was to run for President, there would be widespread reference to Article II, section I in opposition to the candidacy.

      But, assume the following events were to occur. A thirty-year-old candidate runs for President and is elected. She serves for four years, fulfilling all the constitutional and legal duties of President. Legal challenges to her service are unsuccessful perhaps because the challenges are considered to be "political questions."(3) She is defeated for re-election by another thirty-year-old candidate four years later. The new President also carries out the duties of the office. Now the question is asked, under the U.S. Constitution, may a thirty-year-old individual serve as President?

      The answer depends upon what is meant by the U.S. Constitution. In the first sense of the term (how power is actually exercised), the answer, of course, is yes. In the second sense (the contents of a document), the answer for the objective reader is doubtless no.(4) In the third sense, the answer depends upon whether the person or institution answering the question accepts or rejects the change in a fundamental rule for the society. One who rejects the change will simply state that the current practice is a violation of the fundamental societal agreement, which continues to require that Presidents be at least thirty-five years old. Such a person, with a full grasp on reality, can argue that the answer is still no; that under the U.S. Constitution a thirty-year-old individual may still not be President. There have simply been a couple of violations of the constitution in that regard. On the other hand, those who accept the change, no matter what the reason, effectively have agreed to a modification of the fundamental agreement about how power should be exercised in the nation.(5)

      Thus, the answer to a question about the content of the U.S. Constitution, under the hypothetical, is either yes, no, or "it depends on political facts," depending in turn upon what the answering person means by "constitution."

   2. U.S. and U.K. Constitutions

      In order to construct the foregoing example, it was necessary to hypothesize a plausible situation where no objective body within the system would have the power to force the practice to conform to the terms of the document. Thus, there was the need to assume that the political question doctrine would keep the courts from finding the practice unconstitutional.(6) An alternative assumption--less plausible to U.S. citizens--would be that courts find the practice unconstitutional, but the political branches simply disregard what the courts hold. In, either of these situations, the necessity becomes more obvious for the analyst to attribute precise meaning to the word "constitution" in order to avoid speaking nonsense.

      In contrast, where a written constitution is the ultimate basis or referent for decisions of an objective body, and powerful elements of society comply with the decisions of that body, then we may expect the different meanings of "constitution" to be conflated. In the United States, we are accustomed to assuming all three of these conditions. First, we have a written constitution that is widely assumed to have meaningful content. Second, the courts interpret the writing and apply it as the highest law. Finally, those with political power in the United States have generally acquiesced in decisions of the highest court applying such interpretations.

      Thus, if a foreigner asks a U.S. scholar whether, under the U.S. Constitution, a person may be criminally prosecuted for burning the U.S. flag, the scholar could legitimately answer a simple "no." The text has been interpreted to state "no" by the U. S. Supreme Court.(7) Despite disagreement by some Supreme Court justices,(8) and by the majority of the U.S. Congress,(9) criminal prosecutions for such acts have ceased. "No" is a defensible answer whether we mean the U.S. Constitution as text, referent, or practice.

      Not all political entities in the world have systems with the three characteristics that we often assume about the United States. Some systems lack a written constitution, notably the British.(10) Others have written constitutions that are not law, in the sense that courts (or other decision-makers) are not permitted to apply them directly.(11) Finally, some systems have written constitutions, whether or not directly applicable, where flouting of the provisions is simply not corrected by any person or institution in the system.(12) Such differences demand of any constitutional discussion a clarification of the meaning of "constitution."

      For instance, take the question of whether a man married to a divorced woman may serve as King of England under the British Constitution. If "constitution" means a written document superior to statutes, then there is no relevant provision one way or another. If "constitution" means fundamental referent for disputes, then an observer could argue yes or no, based on the customs and practices that give content to the "conventions" of the British constitution. The events of 1937 might serve as a precedent.(13) A different answer might result if we mean by "constitution" what power actually gets exercised. If parliament were to acquiesce in such a marriage, and the King were to exercise the powers allocated to him under the British system, then the answer would be yes. Otherwise, presumably not. The answer under this meaning of "constitution" depends on a political prediction, which may or may not be governed by stare decisis. Apart from what the answer is to these questions, the point is that as different questions, it is certainly possible that they might have different answers.

      Without a written constitution, Britain is unusual among nation-states today. Not so unusual, however, are written constitutions that are not directly applicable by courts or other decision-making bodies. Indeed, until fifty years ago the United States was almost unique in giving its courts the power to apply the constitution as law higher than statute or other sources of law. The theory of a constitution that is applied directly by courts as the highest law is set forth most famously in Chief Justice Marshall's opinion in Marbury v. Madison.(14) Marshall's opinion relied to a notable extent on the written nature of the U.S. Constitution:

      Those then who controvert the principle that the constitution is

      to be considered, in court, as a paramount law, are reduced to the

      necessity of maintaining that courts must close their eyes on the

      ...