Marco Olivetti ([*])
The Special Administrative Regions of the PRC in comparison with autonomous regions models
1. Introduction. - The modern literature of comparative constitutional law and of general theory of the State has always tried to provide a satisfactory explanation forthe various forms of autonomy that cannot be included in the classical phenomenon of the federal State.
Already in the final decades of the 19th century the literature on the distribution of political power from the “spatial” point of view underlined that it was impossible to interpret a wide range of phenomena only on the basis of the dichotomy Unitary State/Federal State (leaving aside the phenomenon of the Confederation).
To describe a series of forms of autonomy which included examples such us the position of Iceland within the Danish Kingdom, of Finland within the Russian Empire, of Croatia in the Hungarian monarchy, of the US Federal Territories, of the German territory of Alsace-Lorraine, the Austrian domination in Bosnia Herzegovina, and, after World War I, the autonomy of the Aaland Islands in Finland, of the Memel Territory in Lithuania and of Rutenia in Czechoslovakia, the concepts of “Staatsfragmente” (Fragment of State), Abhängige Länder (Dependent Countries), Autonomous Provinces, andLänderwere elaborated by the most authoritative constitutional lawyers of the time (Jellinek[1], Redslob[2], Kunz[3]...). These categories included on the one hand States in which the autonomous entities enjoyed competences wider than those recognized to member States within federations (this is the case of Finland between 1808 and 1917 and of Croatia between 1867 and 1918) and on the other hand forms of autonomy where the position of the autonomous entity was clearly weaker than the one granted to a member State within a federation.
After the enactment of the Constitution of the Second Spanish Republic (1931) the concept of regional or regionalized State began to emerge[4] and the constitutional literature after World War II has studied extensively this form of State in its variances throughout the world (and in particular in Europe). Yet the attention dedicated to autonomies different from that of Member States of Federations has been of marginal importance if compared to the theory of federalism and it has been explored mainly in the perspective of international law[5].Moreover, this literature usually starts from the assumption that the regional State is a form of constitutional arrangement where the autonomy is somewhat less developed than in the federal State or from a mixed consideration of autonomy and federalism (especially in the case of international lawyers).
Of course, this paper will not summarize the main theories concerning federal and regional States, but, starting from some widely accepted assumptions, it will:
(a) recall very briefly the “federal”, “regional”, “centralized” and “confederal” elements that are present in the model of legal regulation of the Chinese Special Administrative Regions;
(b) focus on some specific problems posed by the Basic Laws of the two Regions, in the perspective of the theory of the different forms of autonomy;
(c) draw some tentative conclusions on the nature of the Chinese Special Autonomous Regions of Hong Kong and Macao, in the light of the comparison with other experiences of autonomy of the 19th and 20th centuries.
In so doing, the paper will take into account also the classical theory of federalism[6], on the one hand trying to explain why it cannot be totally applied to other forms of autonomy, and on the other trying to use thoseelements that can be extended beyond the cases of federal states.
2. The Special Administrative Regions of Hong Kong and Macao and the models of territorial distribution of powers. – One of the most interesting features of the Special Administrative Regions, if viewed from a comparative perspective, is the fact that their legal regulation includes elements that are commonly regarded as typical of different models of constitutional arrangements regulating the distribution of power over the territory: federalism, regionalism, unitary-centralized State, confederation of States[7].
Limiting this observation only to some more evident features of the two SARs’ legal status, we can realize that:
(a)The most typical element of a federal polity that is incorporated by the Basic Laws is the existence of a double level of government, each of which is complete in the sense that there is a regional legislative, a regional executive and a regional judiciary beside a national (i.e. Chinese) legislative, executive and judiciary system of authorities and that the legislative, executive and judiciary power as a function is divided between the authorities of the two levels (i.e. Chinese and regional). Even though such a distribution does not adopt the rule of the general competence of the regions[8], it is clear that the powers of Chinese mainland authorities are confined to specific areas (listed in Annex III) and that the areas delegated to the competence of the two regions are defined quite broadly, in a way that tends to correspond to a general competence;
(b)The absence of forms of participation in the formation of central decisions is usually an element that distinguishes both the more developed forms of European regionalism (e.g.Italy, Spain, Portugal) and the less recent forms of autonomous entities within a unitary State (Austria 1861-1918, Finland 1809-1917, Memel 1920, etc.[9]) from the classic federal State. This latter form of State is characterized – from the structural point of view – by two concurring elements: autonomy and participation[10], but while the degree of autonomy of the Regions in some regionalized States is often very similar to the autonomy of the member States within federations[11], the participation of the regions in executive and legislative central power (i.e. in the exercise of the power pertaining to the central State) is only symbolic[12] or totally non-existent. In the case of the Chinese SARs, the central Constitution does not provide for forums or procedures where the regional authorities can participate in the formation of central acts (ordinary or constitutional laws), and thus interact within them and with the central State in order to influence central political decisions;
(c)A further “negative” element leads us to assimilate the SARs to the Provinces of a unitary centralized State or to administrative regions within a unitary State (like France or Poland). Both in federal and in regional States (with the decentralization of legislative power), the central Constitution includes clauses regulating the division of competences between the centre and the regions or the member States. We have seen above that such a division does exist in the case of the Chinese SARs, but we must also underline that the central piece of legislation providing for the division of powers is neither a constitutional clause, nor is it included in a constitutional statute[13], separate from the central Constitution, but having the same legal force. The only central guarantee of the autonomy of the Chinese SARs at the constitutional level is art. 31 of the Chinese constitution, but this article does not mention (and therefore does not guarantee) the specific powers of the SARs[14]. Perfectly coherent with the absence of a (central) constitutional guarantee of the spheres of autonomy is the absence of a guarantee of such autonomy by a constitutional Court;
(d)If the picture that I have just outlined gives the idea that the autonomy of the Chinese SARs is partly federal and partly weaker than a federal arrangement, on the other hand the legal regulation of the Chinese SARs includes some aspects that could belong to a mechanism more similar to a confederal equilibrium or to an association of sovereign states. This is indeed the most surprising side of the status of the two SARs, where the promise of a “high degree of autonomy” mentioned in the Sino-British and in the Sino-Portuguese joint declarations seems to have been fulfilled. I will mention in this perspective the sort of “wall of separation” that the Basic Laws have built between the central Chinese authorities and the citizens of Hong Kong and Macao and the provisions concerning citizenship, territory and public order. Furthermore, notwithstanding the statement of the Basic Laws that reserves for the centre the regulation of foreign policy[15], the two SARs have extensive powers in the field of external affairsthat give them a semi-international status, more typical of a quasi-State than of a federated polity.
3. Some remarks on the more interesting aspects of the autonomy of the Chinese SARs. – I will briefly recall some features of the SARs system that can help us to focus on the more original elements of their constitutional regulation. I will analysecertain aspects of the following problems, some of which have already been mentioned in the previous section:
(a) homogeneity and constitutional autonomy;
(b) the (central) constitutional foundation of the “high degree of autonomy” of the two SARs;
(c) foreign relations inthe SARs;
(d) “Citizenship” and Territory;
(e) immunity from central legislation;
(f) the ChineseState and asymmetrical regulation of the territorial distribution of powers.
3.1. Macao and Hong Kong and the problem of constitutional homogeneity. An element that characterizes almost all forms of autonomy and even of confederal unions is the requirement of homogeneity between the centre and the autonomous entities (vertical homogeneity) and of the different entities between them (horizontal homogeneity). Here we will focus only on the first aspect of homogeneity.
Homogeneity can be regarded as a factual precondition of a confederal, federal or regional organization, arguing, for example, that only peoples similar in language, culture, history and religion can be part of a same polity: we find similar statements in authors such as John Stuart Mill[16], Charles de Montesquieu[17] and James Madison[18]. But this is not the point of greatest interest in this case, because on the one hand prevailing contemporary political theory tends to understate the importance of this factual homogeneity and to theorize the possibility, and even the desirability, of a multi-ethnic, multi-cultural, multi-religious and multi-national State, and even more so of a federation (the experience of the European Union is a good example in this perspective[19]). On the other hand the homogeneity of “race”, culture and heritage is to a high degree present in the case of the two SARs (even the difference of language – arising from the use of English in Hong Kong and of Portuguese in Macao – is only partial).
For an analysis of the Chinese Special Administrative Regions it is necessary to take into consideration another profile of homogeneity, regarding it as a legal prescription, as a sollen and not as a sein. In this perspective, homogeneity, within confederal and federal polities, is a federal (or confederal) constitutional clause that establishes criteria suited to limit the constitutional (and therefore legislative, executive and jurisdictional) autonomy of the member States. Such a clause usually requires that the memberStates and the federation share some common minimal characteristics. As examples of such clauses, we can mention here the “Republican form of government” clause of art. IV, sect. 4, of the US Constitution[20] or art. 28 of the German Constitution of 1949[21], which provides that the German Regions shall have a republican, liberal-democratic and rule-of-law abiding system of government[22]. The German constitutional literature underlines the difference between the concept of homogeneity and that of uniformity[23]; therefore the prescription of the federal Constitution is usually construed as regarding only the form of State and not the form of government (but other federal Constitutions regulate also the form of government of the member States with penetrating and uniform rules[24]).
We can select three different aspects of the prescription of homogeneity, concerning the form of the State:
(a)homogeneity of the socio-economic structure (e.g. socialist/free market);
(b)homogeneity of the political structure (e.g. liberal-democratic/autocratic);
(c)homogeneity of the regulation of fundamental rights.
In the case of the SARs there is a remarkable lack of homogeneity in each of these three aspects between the mainland and the two regions[25].
It could be argued that homogeneity is not prescribed to the Chinese Special Administrative Regions because they do not have constitutional autonomy[26]. Indeed, homogeneity in a Federation is aimed above all at circumscribingthe constitutional autonomy of member States: since the latter is unlimited in principle, the homogeneity clause has the function of harmonizing the federal and the memberState legal orders.
But this objection would be only partially right in the analysis of the Chinese SARs. Even though the two regions do not have formal constitutional autonomy, they have autonomy in exercising all functions under the constitutional level (legislative, executive and judicial) within the limits set by the Basic Laws, and, in so doing, they are limited only by the Basic Lawsthemselves and not by the central Constitution. Therefore, the problem of homogeneity between the two legal orders remains open even without constitutional autonomy[27]. In the case of the SARs, the lack of homogeneity is not only in some aspects allowed or tolerated, but it is directly imposed on the Regions by their Basic Laws, to the extent that they cannot even reduce or remove it (e.g.by adopting a socialist system)[28].
Here lies, in my opinion, the core problem of every attempt to classify the SARs using the models created in the literature relating to the territorial distribution of powers. None of these models and none of existing experience allows for such a difference in political structure, in socio-economic model and in the regulation of fundamental rights between the centre and the autonomous entities like the one provided for by the Hong Kong and Macao Basic Laws. To find similar cases, we have to go back to the European constitutional history of the 19th century. The most interesting example that can be compared with the SARs is the case of the autonomous Grand-Duchy of Finland within the RussianKingdom between 1809 and 1917[29]. The Czar, the Russian head of State, was also head of State (Grand-Duke) of Finland, but while he ruled Russia as an absolute monarch, he governed Finland as a constitutional king, through a Secretary of State for Finland, a Finnish Senate and a Finnish Parliament[30]. The other case of lack of homogeneity in the form of State was the Second German Empire (1871-1918) where three republican States (the city States of Hamburg, Bremen and Lübeck) were members of a monarchic federation, composed mainly of kingdoms. Finally, it is also possible to quote some cases of colonial dependency, where the motherland was ruled by a democratic form of State, while the colony was submitted to autocratic rule, or, in the case of some English colonies, to autocratic rule with limited forms of representation. This latter case – among which also Hong Kong before 1997 can be mentioned – is the exact opposite of the present situation of the two SARs, where the mainland is ruled by a single-party system, while the Regions are governed with a semi-democratic arrangement.
Indeed we have also some 20th century examples of lack of homogeneity in the form of State, like the federation of Uganda between 1962 and 1966, where the central State was a republic, while the most important memberState (Buganda) was a Monarchy. Today the Malaysian Constitution is another example of this kind: while 9 member States are monarchies, the other 4 have a republican organization. In turn, the Federation has a monarchic form (with the 9 monarchs rotating in the role of federal head of State).
If the Basic Laws do not require homogeneity, but seem even to impose non-homogeneity, the question to be raised is whether – and in which form and direction – the lack of homogeneity can be reduced or increased.
Each of the three above-mentioned dimensions of constitutional homogeneity in a composed State poses interesting problems.
(a)As regards the homogeneity of the socio-economic structure, the tendency in the first ten years of the history of the first SAR (Hong Kong) seems to be a reduction in non-homogeneity, but, paradoxically (if we look at this problem from the perspective of the dynamics of federalism), the process is the approach of the mainland towards the “capitalist” model adopted in the two Regions. This has happened not only from the factual point of view (the enormous growth of the Chinese economy and the material and legislative conditions that allow it), but also in formal constitutional law, as the introduction of the protection of private property in the Chinese constitution clearly demonstrates[31]. In this case the homogenizing effect created by sharing a common political order is working in a way that is the exact opposite of what should happen according to the general tendency of the dynamics of composed States[32].
(b)Political homogeneity raises the question of the process of democratization in the SARs ([33]), especially in Hong Kong. While homogeneity is already lacking between the semi-democratic regimes of Hong Kong and Macaoon the one hand, and the system of SinglePartyState ruling in China on the other, the democratization process would deepen the difference between the two systems. The experience of federal States usually teaches that radical lack of homogeneity is not tolerable within the same polity. The possibility that also in this respect the homogenization process may work in the direction of assimilating China to Hong Kong, and not vice versa, could be a very original way of working of the dynamic dimension of homogeneity, and it also explains the fears of the government in Beijing.