Siblings of the Dragon: China's Territories and Constitutional Law

• Author: Tu Kai
• Pages: 222-250

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222 TSINGHUA CHINA LAW REVIEW [Vol. 7:221

SIBLINGS OF THE DRAGON: CHINA’S TERRITORIES AND

CONSTITUTIONAL LAW

TU Kai

I. INTRODUCTION

China’s territories are asymmetrical. Ideologically, statist

socialism remains the People’s Republic of China (PRC)’s

orthodoxy, but Hong Kong retains a “free market” of speech and

belief in accordance with the Basic Law of the Hong Kong Special

Administrative Region (HKSAR). Societally, in China’s peripheries,

ethnic minorities, as territorial majority groups, are entitled to

preserve their languages and cultures in autonomous (administrative)

regions. Only in China proper have ethnic Han Chinese retained

demographic dominance. Constitutionally, the Chinese state is a

hybrid of various constituent units – special administrative regions,

ethnic autonomous regions, and others of diverse legal statues – the

theoretically “unitary” nature is under questions. According to

Chinese legend, a dragon can have nine siblings and each of them are

different – one who loves music sits on a lute; another who has good

eyes resides up on the roof. This article argues that the asymmetry of

Chinese territories, like the differences among the dragon’s siblings,

has set the Chinese territories apart from ordinary administrative

divisions, and created a unique regime of jurisprudential

significance.

As a matter of scope, this article will explore only three

phenomena. The first section addresses the heterarchy of authorities

in the Chinese context. The PRC central government and the

territories are neither of equal authority, nor do they form a

heterarchy of authorities with the PRC central government at the top.

Ordinary administrative divisions are subordinate to a central

government, but the territories may vary in institutions, cultures, and

political attachments. The second section goes to the relationship

between the authorities and citizens/nationals. The PRC, as a

theoretically unitary state, still does not offer homogenous

citizenship to all Chinese nationals. In fact, Chinese nationals

registering residentship in different jurisdictions are entitled to

various rights and legal treatments; in many circumstances, Chinese

nationals are neither citizens nor aliens in a Chinese territory. This,

nevertheless, has much outstripped what ordinary administrative

divisions are supposed to do. In the third section, the article

addresses the territories’ relationship with the international

community. The structure of this article may be understood as a

tripartite covering the relationship between the territorial authorities

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and the PRC central government with territorial authorities,

individuals and foreign states respectively. Hypothetically, a unitary

state’s relationship, legal or political, with its citizens/nationals

should be simple and direct. As modernist constitutionalism

presumes, the constituent power shall vest in a singular “people” as

the demos of a liberal democracy and the constituted power ought to

be primarily provided by a single Constitution. However, as the

following sections will illustrate, the Chinese cases obviously depart

from this presumption.

II. HETERARCHY OF AUTHORITIES

A. Mainland and Taiwan

In Chinese territory, there are two main opposing political stances

on each side of the Taiwan Strait – the Chinese mainland and

Tai-wan. Because the Communist Party of China (hereinafter CPC)

does not seek democratic legitimacy for the regime, the narrative of

historical triumphs against “national enemies” is possibly the only

legitimization of its reign. The Preamble of the 1982 PRC

Constitution provides:1

“The people of all nationalities in China have jointly

created a splendid culture and have a glorious revolutionary

tradition. Feudal China was gradually reduced after 1840 to a

semi-colonial and semi-feudal country. The Chinese people

waged wave upon wave of heroic struggles for national

in-dependence and liberation and for democracy and freedom.

Great and earth-shaking historical changes have taken place in

China in the 20th century. The Revolution of 1911, led by Dr.

Sun Yat-sen, abolished the feudal monarchy and gave birth to

the Republic of China. But the Chinese people had yet to fulfill

their historical task of overthrowing imperialism and

feudalism. After waging hard, protracted and tortuous

struggles, armed and otherwise, the Chinese people of all

nationalities led by the Communist Party of China with

Chairman Mao Zedong as its leader ultimately, in 1949,

overthrew the rule of imperialism, feudalism and bureaucrat

capitalism, won the great victory of the new-democratic

revolution and founded the People’s Republic of China.

Thereupon the Chinese people took state power into their own

hands and became masters of the country.”

1 Xianfa (宪法) [Constitution Law] (promulgated by Nat’l People’s Cong., Dec. 4, 1982)

(Chinalawinfo).