–Bui Ngoc Son, Assistant Professor, Chinese University of Hong Kong Faculty of Law
On 28-29 March 2019, The Chinese University of Hong Kong Faculty of Law hosted a Symposium on “Global Constitutionalism: Asia-Pacific Perspectives.” The Symposium brought together a diverse group of scholars to discuss how polities in the Asia-Pacific region respond to the global spread of ideas and institutions of constitutionalism, and why they respond in a certain way.
The Symposium featured the keynote speaker, Professor Cheryl Saunders, Laureate Professor Emeritus at Melbourne Law School and President Emeritus of the International Association of Constitutional Law. In her keynote speech entitled ‘Transformation Constitution’, Professor Saunders explored the extent to which if at all, the very concept of a constitution is undergoing change in the conditions of globalization with particular reference to Asia. Professor Saunders tentatively concluded that it is not, but underlined that the conditions of globalisation in which constitutions presently operate suggest that there is the external face of a constitution: It distinguishes the state, its people and its territory from others (for good or for ill); and It structures the way in which the state participates in the international realm by empowering state institutions, by limiting the authority of state institutions and by defining the relations between them.
Akiko Ejima (Meiji University School of Law, Tokyo) discussed “What Makes Global Constitutionalism Possible? Case Study on Japan Who Experienced Two-Time Comprehensive Transplants of Constitutionalism.” She demonstrated that Japan has experienced comprehensive transplants of constitutionalism in the late 19th century and the after the World War II. Because of external and internal conditions of the latter half of the 19th century (colonialization/imperialism and a nation-state building as a newcomer in the international community) and the 20th century (internationalism and the United Nations, and re-debut in the international community and re-building of the state), Japan could not have been free from direct influences of constitutionalism and internationalism. She concluded that the Japanese experiences can be described as a harbinger of the global constitutionalism (the Constitution of the Empire of Japan (1889) and an eager recipient or a stubborn resistor of the global constitutionalism (the Constitution of Japan (1946).
Yoon Jin Shin (Seoul National University School of Law, South Korea) presented on “Rising Global Constitutionalism in South Korea: The Interplay Between Nationalism and Cosmopolitanism.” She explored how the two (seemingly) contrast strands of factors – the nationalist and the cosmopolitan – are interacting and informing the emerging practice of global constitutionalism in South Korea. She concluded that transnational engagement does not always mean being cosmopolitan in substance or nature. It can be generated or facilitated also by nationalist agendas and orientation. Current South Korea practice shows the mixture and interplay of both. In conclusion, she proposed addressing current nationalist anxieties and developing Korea’s transnational engagement into a more cosmopolitan one by enhancing mutually reinforcing and pluralistic relationships between international and national law; and leading horizontal and regional interactions in a more egalitarian and substantively serious manner.
Chien-Chih Lin (Institutum Iurisprudentiae, Academia Sinica, Taiwan) discussed “Global Constitutionalism as a Fortress Besieged: Through the Lens of Taiwan.” He demonstrated that the institutional design of judicial review, the decisions of Taiwan Constitutional Court, and constitutional culture in Taiwan have swung between the American model and the German model—two very different paradigms of constitutionalism. Weaving together several threads of history, law, and politics, he made three claims. First, foreign legal education and identity concerns explain why judicial review, and more broadly, constitutional development, in Taiwan has not only flourished but mirrored both the German and the American constitutional jurisprudence. Second, the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited. That is, global constitutionalism may better be called Euro-American constitutionalism around the globe. Finally, comparing the experience of Taiwan with the reversal of global constitutionalism in Central and Eastern Europe and Latin America, Chien-Chih Lin argued that global constitutionalism, insofar as it exists, is like a fortress besieged: those who are outside want to get in, and those who are inside want to get out.
Albert Chen (University of Hong Kong Faculty of Law, Hong Kong) discussed “Constitutionalism without Full Democratization: The Case of Hong Kong under One Country, Two Systems”. He pointed out that the study of the constitutional law of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China, which embodies the concept of “One Country, Two Systems” as adopted in the Sino-British Joint Declaration of the Question of Hong Kong (1984) and the Basic Law of the HKSAR (1990), can furnish a case study of global constitutionalism. He examined those elements of the Hong Kong constitution that reflect global constitutionalism at work, as well as those elements that do not conform to global constitutionalism. He argued that both sets of elements originated in Hong Kong’s colonial era, and that since the signing of the Sino-British Joint Declaration, Hong Kong has moved towards global constitutionalism – a movement which has continued after the handover in 1997 when the Basic Law came into effect. He also pointed out that the political system of the HKSAR, in which full democratization has not been achieved, is the most significant element of the Hong Kong constitution that is resistant to global constitutionalism.
Samuli Seppänen (The Chinese University of Hong Kong Faculty of Law, Hong Kong) explored “Layers of Legal Formalism and Anti-formalism in the Chinese Communist Party’s Governance Project.” He examined the idiosyncratic mixture of legal formalism and anti-formalism in the governance of the Chinese Communist Party (CCP). He pointed out that legal formalist arguments and attitudes support the constitutionalization of the use of power by Party cadres, whereas anti-formalism seeks to liberate the use of power from rule-based constraints. He described these arguments and places them into the context of global legal and political thought. He concluded that constitutionalism is not only a consequence of Western liberalism, but also a function of the bureaucratization process of political organizations, including the bureaucratization of Marxist-Leninist political parties.
Surabhi Chopra (The Chinese University of Hong Kong Faculty of Law, Hong Kong) considered the “Economic and Social Rights in the Philippines: The Trouble with Transformative Constitutionalism.” She indicated that while the 1987 Constitution in the Philippines is often criticized for a lack of ambition, it emphasizes social justice and obligates the State to tackle poverty. It brings questions of material deprivation and basic needs into the province of constitutionalism and constitutional law. In this respect, it echoes some other, more-celebrated young constitutional texts, such as the South African or Indonesian constitutions. She considered whether and how the Philippines Supreme Court took the transformative mission of the 1987 Constitution into account during adjudication. She argued that the Philippines Supreme Court has only very occasionally attempted to enforce economic and social rights, and often doubted its own jurisdiction and capacity to do so. In discussing the Philippines experience, she highlighted some of the dilemmas that a transformative constitutionalist project can create for apex courts.
Bui Ngoc Son (The Chinese University of Hong Kong Faculty of Law, Hong Kong) presented on “Subglobal Constitutionalism in Southeast Asia.” He investigated eight independence constitutions in Southeast Asia to see whether they share the global standards of constitutional model. These include three constitutions of the former British colonies (Malaysia, Singapore, and Burma), three constitutions of the former French Indochina (Vietnam, Cambodia, and Laos), one constitution of the former US colony (the Philippines), and one constitution of the former Dutch colony (Indonesia). Drawing on intra-imperial and trans-imperial institutional isomorphic accounts, he argued that the transnational influence on these Southeast Asian postcolonial constitutions exemplifies the phenomenon of subglobal constitutionalism: the ideas and institutions of constitutionalism are diffused within and across imperial boundaries. The impact of subglobal constitutionalism does not result in a single consequence of convergence. Rather, convergence, divergence, and resistance occur at the same time as the consequence of competing influential factors.
Rehan Abeyratne (The Chinese University of Hong Kong Faculty of Law, Hong Kong) discussed “Global Constitutionalism through an Indian Lens.” He analyzed the ways in which South Asian courts have engaged with global constitutionalism. He pointed out that India, as the dominant state and regional hegemon, has served as a filter through which Bangladeshi and Sri Lankan Supreme Courts have expanded their fundamental rights jurisdiction over the past 20 years. The Bangladesh Supreme Court has largely accepted global norms through this Indian filter without much pushback or even engagement with the Indian case law. Sri Lanka has been more cautious. The Supreme Court of Sri Lanka often cites Indian judgments without fully accepting their conclusions or engages with Indian jurisprudence but arrives at different outcome. He made two broad claims about these developments. First, he argued that a model of regional constitutionalism has developed in South Asia in which the Indian Supreme Court does the work of translating global constitutional norms/standards for use by its neighbors. Second, he demonstrated how Indian cases from the 1980s and 90s form the bulk of comparative citations in both Bangladesh and Sri Lanka, suggesting that Indian influence is waning or that there is a time lag in the migration of constitutional ideas across the region.
Anna Dziedzic (Melbourne Law School) discussed “Foreign judges in Pacific island states: Agents of global constitutionalism?.” She considered foreign judges in Pacific states as a conduit for the movement of ideas and institutions of constitutionalism. She pointed out in the Pacific states of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu, foreign judges regularly sit on the highest domestic courts and determine constitutional matters. She argued that foreign judges bring the ideas, doctrines and assumptions of the constitutional law of their home state to constitutional adjudication in Pacific states. She further indicated that foreign judges, by and large, foster a textualist approach to constitutional interpretation, reflecting both the orthodoxies of their home countries and their reticence, as outsiders, to seek to reflect or change national values or community standards.
In the concluding session, the participants discussed general and theoretical questions. The participants underlined how the exploration of the Asia-pacific jurisdictions can enrich the academic inquiry into global constitutionalism.