Chinese Constitutionalism and Domestic Rights Protection in the Chinese World
China has struggled with "constitutionalism" since the late 19th century, and the last Chinese imperial dynasty's attempt at domestic political reform and self-strengthening in the face of aggressive foreign powers, European and Asian. That early engagement with constitutionalism, however, was focused entirely on Qing Dynasty-led political institutional reform, specifically the establishment of a national consultative assembly or even legislature, and transformation of the Qing dynasty into a species of constitutional monarchy. A separate idea, "strict constitutionalism" or the authoritative review of legislative and regulatory enactments or government action for conformity with the higher principles enshrined in a written constitution, only gained attention in the early 1930s with the rise of the Guomindang (KMT) single party state and serious constraints placed on what many Chinese citizens perceived to be basic civil and political rights. This seminar will focus on the development of such "strict constitutionalism" in the Chinese world between 1895 and the present, focusing on the unique elements of this project in the People's Republic of China (PRC) from 1949 to date, the Hong Kong Special Administrative Region transformed from a colony of the United Kingdom into a special administrative region of the PRC in 1997 Handover, and the Republic of China on Tawian as it has moved from "emergency" (military) rule to a more democratic system. Accordingly, the course will concentrate on the protection of basic human rights under domestic law (and constitutions) in the Chinese world, without significant consideration of how nation states in the Chinese world implement international human rights treaties domestically, whether directly or by incorporation of such treaty obligations into domestic law. Ultimately, the course will grapple with difficult questions about the basic suitability of such strict constitutionalism, or indeed the protection of basic civil and political rights against the state (or party behind the state) under domestic law, for Chinese world nation states, with some consideration of alternative mechanisms which might also ensure the protection of such rights.
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