A new paper by Han Liu

American constitutional law has influenced various countries, but what about China? For conventional account, the answer is, little, given China’s socialist constitutional system and continental legal thinking. Diving into a relatively unexplored domain, Han Liu traces the reception of American constitutional law in post-Reform China, arguing that American constitutional law has greatly influenced Chinese constitutional thinking, sometimes even generating practical reform projects (article, free draft).

To be sure, American constitutionalism had almost no influence in proto-socialist China (1949–1979). In 1979, as China and the United States established diplomatic relations, interest in American constitutional system began to surge. Translations, studies, and introductions about American constitutional law started to grow rapidly. This academic project also influenced practice, especially by providing an example of the separation of powers and judicial review.

Han Liu points out that there has been a great change in Chinese understandings of American constitutionalism, that is, from “regime-centered” to “court-centered”. These two exerted different practical influences. In the 1980s, American constitutionalism was generally tantamount to tripartite “separation of powers” to Chinese intellectuals, legal or otherwise, and even political leaders. Deng famously said that “I always criticize the American power holders for having three governments.” Despite Deng’s critique, others tried, without success, to learn from the American example, bringing checks and balances into the Chinese system.

But at the turn of the century, especially in the early 2000s, American constitutionalism shows a different face. For many legal scholars and lawyers, it was understood as synonomous with judicial review. They came to believe that a constitution remains a dead letter if not used in courts and litigations, as in the US. The US Supreme Court, with its power to enforce the Constitution, now took the center stage in the Chinese understandings. Its Chinese counterpart, from 2001 to 2008, even introduced an American model of judicial review into the Chinese judicial system.

Why has this happened? It was not simply a “response-impact” mechanism. Rather, China’s different receptive attitudes towards American constitutional law hinge upon China’s own frame of reference in the legal reform. As the authorities began to construct “the rule of law” in the 1990s, the Constitution had to be activated in practice. Then the American model became attractive.

In the space between theory and practice, the Chinese constitutional mind becomes receptive to American influence.

This logic also explains the decline of American influence in Chinese constitutional theory and practice in the last ten years. While the authorities declare the principle of “governing according to the constitution”, they at the same time stress China’s distinction from “Western” models, especially the US. In due course, American constitutionalism in China will perhaps no longer be the single idol to adore, let alone the best model to follow.

Looking back, American constitutionalism’s impacts on Chinese constitutional development depend upon the internal logic and dynamics of Chinese reform, which determines the optics in the reception of foreign law. The fundamental change in Chinese understandings of American constitutionalism reflects the great transformation in the deep structure of Chinese ideology and jurisprudence.

Han Liu is Associate Professor at Tsinghua University Law School and Deputy Director of Tsinghua Institute for Law and AI. He researches comparative constitutional law, cyber law and policies, and legal theory. His recent paper ‘Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China’ (free draft here) appears in American Journal of Comparative Law, selected as one of the top 10 comparative law articles in the Best of 2020 Law Journals from Oxford University Press. His book Think Big and Beyond Yourself: Law as a Way of Thinking (in Chinese) won “The 10 Best Books 2020 in Law” in China. His online course “Legal Thinking” has attracted more than 70, 000 subscribers. Reach out to him at liuhan[at]tsinghua.edu.cn.

A new paper by Hualing Fu and Xiaobo Zhai

The Covid-19 pandemic since February 2020 and the Hong Kong National Security Law (HKNSL) passed on June 30, 2020 have set an abrupt end to the protests in Hong Kong, which, according to its mini-Constitution, the Basic Law, enjoys ‘high degree autonomy’ under China’s sovereignty and shall be administered by Hong Kong people. Activating Article 18 (4) of the Basic Law, declaring a state of emergency, and deploying the army to restore order in Hong Kong were under wide and lively discussion in September 2019 (for contributions, see here, here, here, and here). One aim of the HKNSL, as pointed out by Shen Chunyao, head of Beijing’s Basic Law Committee, is to pre-empt the occurrence of the state of emergency provided in Article 18 (4) of the Basic Law, which, Shen stressed, is “a very serious situation”: it is even much worse than Beijing taking over complete jurisdiction and applying Mainland laws in exceptional national security cases (article 55, HKNSL).

What will this “very serious situation” be like? An answer can be found in the Basic Law’s Art. 18 (4), which says,

in the event that the NPCSC … by reason of turmoil within the HKSAR which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People’s Government may issue an order applying the relevant national laws in the Region.

Fu and Zhai argue that Article 18(4) creates a dual emergency regime: Hong Kong’s own internal one and the NPCSC’s external one. The former is based on the rule of law, where the emergency power is subject to significant legal and political constraints. The latter, however, introduces a state of exception, where an authoritarian state manages a crisis, largely independent of legal rules and without democratic responsibility. In view of this contrast, Fu and Zhai suggest that the HKSAR internalise the responses to states of emergency, so that rights and freedoms be carefully protected, and the rule of law be effectively defended. 

Find the free PDF of the paper here.

Hualing Fu is Dean and holder of the Warren Chan Professorship of Human Rights and Responsibilities, Faculty of Law, the University of Hong Kong. His more recent contributions include: Mediation in Contemporary China (2017); Transparency Challenges Facing China (2018); Socialist Law in Socialist East Asia (2018), and Authoritarian Legality in Asia (2020). Reach out to him at hlfu(at)hku.hk.

Xiaobo Zhai is Associate Professor at Macau University. He co-edited the volumes Bentham’s Theory of Law and Public Opinion (2014) and Bentham Around the World (2020) and is the author of The People’s Constitution (2009) and China’s System of Constitutional Implementation (2009). Reach out to him at xbzhai(at)um.edu.mo.

A new paper by Lu Yu and Björn Ahl

How is data protected in the evolving Social Credit System? Both, social credit and Chinese data protection law is diverse and fragmented, making the search for an answer to this question a complicated endeavour. Lu Yu and Björn Ahl dive into one arguably most sophisticated arm of the Social Credit System, that is, the financial credit information system (FCIS) in their new article “China’s evolving data protection law and the financial credit information system: court practice and suggestions for legislative reform” (free draft here).

The FCIS is not only one of the most mature parts of the overall SCS, as it regulates private entity’s data collection, it also features stricter and clearer data protection rules than those Social Credit subsystems that include data collection by state organs. Most importantly, Chinese data protection law requires data subjects’ consent to the collection and further transfer of personal data. The authors have found the consent requirement to be incompatible with the functions and purposes of the FCIS, with data subjects having no real choice, as consent is linked to obtaining the financial service in questions. Hence, future rounds of reform should establish exceptions to the consent requirement.

In their article “China’s evolving data protection law and the financial credit information system: court practice and suggestions for legislative reform” (free draft here) the authors investigate the limits that Chinese data protection law imposes on the FCIS. The FCIS receives both financial credit data from financial institutions and public data from public authorities. Yu and Ahl analyse the legal framework and how data protection rules are applied in court practice, including the preconditions for and levels of protection afforded data subjects’ rights and the legal consequences of any violations of those rights. Although the courts have adopted differing approaches to the interpretation of data protection law, the authors find that they have established consistent practice in protecting data subjects against the transfer of incorrect negative data. Chinese data protection law provides for neither an effective legal basis nor for limits on the collection and transfer of public data by public authorities. The Information Security Technology – Personal Information Security Specification (2020, hereafter: Specification) provides comprehensive protection for the personal data processed by all organisations, including public authorities, but it is only a recommended standard that lacks binding authority. Although the 2012 Regulations on the Administration of the Credit Investigation Industry grant data subjects a number of rights, the courts have difficulties applying the data protection rules in practice. In sum, there is a need in both the private and public sectors for nationally applicable, binding and more sophisticated data protection rules.

Progress was recently made with the introduction of personal data protection to the new Civil Code, and a comprehensive data protection law is currently on the legislative agenda. Because the Specification has already established a sound model by providing very detailed data protection rules, the future comprehensive data protection law should address the processing of data by public authorities and further refine the already established data protection principles in the Cybersecurity Law and Specification. Improvements in data protection, in particular the regulation of data sharing between public authorities, could serve to balance social governance and individual rights and contribute to enhancing the legitimacy of the overall SCS.

Lu Yu is a research assistant at the chair of Chinese Legal Culture of Cologne University. She is about to submit her dissertation on European and Chinese data protection law to the Georg-August-Universität Göttingen where she has conducted research since October 2017, after working as a legal counsel with Rödl & Partner in Guangzhou. Reach out to her at yuluna5(at)gmail.com.

Björn Ahl is Professor and Chair of Cologne University’s Chinese Legal Culture. Before joining the University of Cologne in 2012, he was Visiting Professor of Chinese Law, Comparative Public Law and International Law in the China EU School of Law at the Chinese University of Political Science and Law in Beijing. Prior to that he held a position as Assistant Professor of Law in the City University of Hong Kong. He has also worked as Associate Director and Lecturer in the Sino German Institute of Legal Studies of Nanjing University and as a Researcher at the Max Planck Institute of Comparative Public Law and International Law in Heidelberg. Find him on LinkedIn.