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

AuthorTu Kai
TU(DO NOT DELETE) 15/12/9 12:19 PM
TU Kai
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
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
TU (DO NOT DELETE) 15/12/9 12:19 PM
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.
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 Peoples 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)

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