LLAW6297 & JDOC6297

General Course Information

1.1 Course details

Course code: LLAW6297 / JDOC6297
Course name: Macau and Hong Kong Comparative Constitutional Law
Programme offered under: LLM Programme / JD Programme
Semester: First
Prerequisites / Co-requisites: No
Credit point value: 9 credit / 6 credits
Cap on student numbers: 30

1.2 Course description

This comparative constitutional law course starts with a brief overview of comparative law issues and discusses the difference between comparative law methods in relation to constitutional law and private law.[1]

The course provides a panoramic and in-depth overview of key features of the legal systems and constitutional orders of the Macau Special Administrative Region of the People Republic of China and the Hong Kong Special Administrative Region of the People Republic of China. It adopts a comparative law methodology approach. Macau and Hong Kong enjoy a similar constitutional order adhering to the Rule of Law, but also have similar problems worthy of further discussion, collaborative research, and efforts in identifying commonalities and understanding differences, thus a mutually beneficial enterprise.

While at present the systems of fundamental rights protection in Hong Kong and Macau operate quite independently from each other, there is still value in comparing the rights provisions in each of their constitutional instruments. “For Hong Kong and Macau are like siblings; while each is different, they are reflections of each other, and the study of one necessarily results in a greater understanding of the other.”[2]

The course covers aspects of political-legal history, fundamental rights, autonomy and subnational constitutionalism, juridical nature of the Basic Law, the One Country, Two Systems framework, the multi-composed constitutional order, and specific aspects of international law particularly relevant to Macau and Hong Kong. This comparative exercise covers the legalised law or law in the books but also the dynamics of fact leading to certain results that a mere look at the law would not allow one to perceive. As pointed out, “[i]n contrast to the near-identity of formal design in the Hong Kong Basic Law and the Lei Básica de Macau, the practice of hybrid constitutionalism arising from the two constitutional documents of the Hong Kong and Macau Special Administrative Regions (SARs) diverges fundamentally, as witness the antithetical jurisprudence of the Hong Kong Court of Final Appeal (CFA) and the Tribunal de Última Instância de Macau (TUI).[3]

Furthermore, being two distinct autonomous entities, the incontestable fact is that the sovereign to which they relate is the same. Hence, the possible guarantees but also the potential threats have a common denominator. This alone reinforces the need, the interest and the adequacy of comparative law approaches to Hong Kong and Macau. Indeed it is academically possible to have a comparative law approach to autonomous legal systems inserted in non-sovereign entities, such as the SARs.

The main objective of this course is to provide a panoramic on relevant topics thus allowing the students to know, understand and problematise the SAR status and constitutional order and to attempt to anticipate possible future perspectives both regarding potential success or potential crisis or difficulties of the system in place up to 2047/2049, using a scientific and objective legal approach and methodology even when politics tend to speak in a rather high tone.

The course will also feature comparative discussions of Macau and Hong Kong on recent topics, whether they be an evolution or regression, e.g. judicial review and power of courts to strike down legislation, national security, Article 18 and Annex III laws, NPCSC Interpretations, independence of the judiciary, political development and reform. As stated some time ago, “Macau and Hong Kong can be described as places where the rule of law survives and with more or less difficulties, more or less density, presents itself as one of the structural principles of both Regions and generally observed, even if with different enthusiasm, or even if with different depth, even if with different maturity, but still much in contrast to many examples in the surrounding geopolitical context.[4] Does this analysis maintain actuality? Contemporary comparative challenges and uneasiness will thus be addressed.

The course is taught by Paulo Cardinal and feature some special guest teachers for discussion and different perspectives on important issues.  The list of topics to be covered include the following.

I. Comparative Law I. General history, aims, methodology, and relevance in a nutshell. Comparative constitutional law: the most ancient field of comparative law. A new rebirth of comparative constitutional law: a study in difference or similarity or both. Comparative constitutional law and cosmopolitism. Comparative constitutional law methodology. Some issues on the field of comparative constitutional law. The multilevel constitutionalism of Macau and Hong Kong. Basic Laws function as constitutions hence they can become the subject of comparative constitutional law. Comparative subnational constitutionalism.

II. Comparative Law II. The background: One Country, Two Systems and the reunification of China under article 31 of the Chinese Constitution. The background 2: What was Macau, what was Hong Kong. The internationalisation of the Macau and Hong Kong cases via the Joint Declarations. The institutional framework: SAR governed by a Basic Law endowed with a high degree of autonomy. Macau and Hong Kong as autonomies subtracted to the mere internal realm.

III. The Essence of the Commonalities in the Basic Laws (and in the Joint Declarations). The differences in the Basic Law – minor but emblematic ones as a result of evolution: fundamental rights, (e.g. non-discrimination clause, human dignity), electoral system, socio-economic systems, plus connatural and presupposed ones: e.g., common law versus continental law, language, currency, among others such as constitutional review, political parties. Commonalities and differences brought up by the dynamics of action from divergence to a path of convergence. Choices, reasons and examples.

IV. Comparative Discussion of Select Topics I. Judicial review and power of courts to strike down legislation, national security, Art 18 and Annex III laws, NPCSC Interpretations, Independence of the Judiciary, the parliaments, political development and reform. An overview.

V. Comparative Discussion of Select Topics II. Article 23 and national security. Connection with Article 18 and Annex III of the Basic Law. Different paths in Macau and Hong Kong. Different solutions. Challenges to the SARs formula and to the Rule of Law. The new actors. Are both Basic Laws and both Joint Declarations at stake or just in the Hong Kong case. The fable of the good student versus the bad one? What next: Prospects of evolution and how can the Law deal with it.

VI. Comparative Discussion of Select Topics III. NPCSC Interpretations. A sea of interpretations versus a single lonely interpretation. Reasons. The interpretations as a gateway to One Country. The use and misuse of interpretations. A new expedite model of Basic Laws revisions. The Joint Declarations as a material limit to Basic Law revisions. Informal revisions by way of interpretations. Again, different SARs, different paths.

VII. Independence of the Judiciary. A connatural, and necessary, constitutive element to the second system. New developments in Macau and new developments in Hong Kong a propos article 23 and national security. Analysis of some judicial decisions on both sides of the Pearl estuary. How is constitutional review tackle by the two SARs courts. Judiciary versus unconstitutional legislation. Judiciary versus legislation that might posit an “unbearable level of injustice.[5] Differences regarding public and political law versus private law. Foreign judges in the SARs: history, problems and prospects and comparative analysis.

VIII. The Political System. The Chief Executives, the Governments and the parliaments. Differences and similarities. The continuously frozen reform in Macau, albeit a lack of problems, versus the aborted reforms in Hong Kong. Prospects on political development and reform. Problems of legitimacy Autonomous governance versus delegated governance.

IX. The Fundamental Rights Bloc. Many similarities but some relevant differences. The non-discrimination clause and the human dignity principle are present in the Macau Basic Law but absent in the Hong Kong one. The use of international human rights law by the courts, strong dissimilarities between Hong Kong and Macau. The dynamics of practice. The exercise of fundamental rights vis- -vis the governmental authorities. Attitudes towards some fundamental rights such as freedom of demonstration, of expression, of the press. The role of the courts, especially regarding the freedom of demonstration, some relevant Macau case law.

X. Contributions to Comparative Constitutional Law and Public International Law. The international law role and relevance regarding the SARs. Prospects of evolution SARs vis- -vis Mainland: identical or different, affirmation or dilution, a push for a generalised second system or absorption.

Sources of Assigned Readings

Yash Ghai, Hong Kong New Constitutional Order the Resumption of Chinese Sovereignty and the Basic Law (HKU Press 1999).

Johannes Chan & C L Lim (eds), Law of the Hong Kong Constitution (Sweet & Maxwell 2015).

Eric C. Ip, Hybrid Constitutionalism – The Politics of Constitutional Review in the Chinese Special Administrative Regions (OUP 2019).

Bokhary NPJ, Hong Kong Basic Law Handbook (Sweet & Maxwell 2015).

Paulo Cardinal, Estudos de Direitos Fundamentais no Contexto da JusMacau, (Essays on Fundamental Rights in the context of JusMacau), (FRC, 2015), (several chapters in English).

Paulo Cardinal, Direito, Transição e Continuidade (Law, Transition and Continuity essays on Macau Public Law), (FRC, 2017), (several chapters in English).

Danny Gittings, Introduction to the Hong Kong Basic Law (HKU Press 2016).

Simon Young, “Fundamental Rights and the Basic Laws of the Hong Kong and Macau Special Administrative Regions” in One Country, Two Systems, Three Legal Orders Perspectives of Evolution Essays on Macau Autonomy after the Resumption of Sovereignty by China (J Oliveira/P Cardinal, eds.), Springer-Verlag, Berlin Heidelberg, 2009.

Albert H.Y. Chen, The Changing Legal Orders in Hong Kong and Mainland China: Essays on “One Country, Two Systems”, (City University of Hong Kong Press, 2021)‘

Po Jen Yap, ‘’Judging Hong Kong’s National Security Law’’, in Fu Hualing and Michael Hor (eds) Hong Kong under China’s National Security Law (HKU Press 2022) (Forthcoming), available at file:///C:/Users/CP/Downloads/SSRN-id3879837.pdf;

Jorge Godinho, One Sovereignty, Two Social Systems, Three Legal Traditions: The Macau Legal System and the Roman-German Family of Legal Systems.

Cora Chan and Fiona de Londras (eds.), China National Security: Endangering Hong Kong Rule of Law, (Hart, 2019).

Zhenmin Wang, Relationship Between the Chinese Central Authorities and Regional Governments of Hong Kong and Macao: A Legal Perspective, (Springer, 2019).

In the field of comparative constitutional law methodology and other related theoretical issues,

Giuseppe De Vergottini, “Constitutional Law and the Comparative Method” in J. Cremades, C. Hermida (eds.), Encyclopedia of Contemporary Constitutionalism, Springer, 2021, Roger Masterman and Robert Schütze (eds.), The Cambridge Companion to Comparative Constitutional Law, (CUP, 2019);

Tom Ginsburg and Rosalind Dixon (eds.), Comparative Constitutional Law, , (Edward Elgar Pub., 2011);

Ran Hirschl, Comparative Matters – The Renaissance of Comparative Constitutional Law, (OUP, 2014).

will receive special attention.

For an updated and scientifically advanced reminder on Comparative Law issues, see Uwe Kischel, Comparative Law (OUP, 2019).

Further readings will be provided or identified in due course, as well as Brief Notes written by the course teacher.

[1] Giuseppe De Vergottini, “Constitutional Law and the Comparative Method” in J. Cremades, C. Hermida (eds.), Encyclopedia of Contemporary Constitutionalism (Springer 2021).

[2] Simon NM Young, “Fundamental Rights and the Basic Laws of the Hong Kong and Macau Special Administrative Regions’’, in (J Oliveira/P Cardinal, eds.), One Country, Two Systems, Three Legal Orders Perspectives of Evolution Essays on Macau Autonomy after the Resumption of Sovereignty by China (Springer-Verlag, Berlin Heidelberg, 2009).

[3] Eric C Ip, Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions, (Cambridge University Press, 2019).

[4] Paulo Cardinal, A Tale of Two Cities – The Judicial Protection of Fundamental Rights in the Exceptional Autonomous Regions of Macau and Hong Kong of The PR of China and the Role and Influence of International Law Instruments on Human Rights, Estudos em Homenagem ao Prof. Doutor J.J. Gomes Canotilho, Vol. III, (Coimbra Editora,2012).

[5] For example, Gustav Radbruch: “The conflict between justice and the reliability of the law should be solved in favour of the positive law, except for cases where the discrepancy between the positive law and justice reaches a level so unbearable that the statute has to make way for justice because it has to be considered “erroneous law”. Another line of demarcation can be drawn with rigidity: Where justice is not even strived for, where equality, which is the core of justice, is renounced in the process of legislation, there a statute is not just ‘erroneous law’, it is in fact not of a legal nature at all. That is because law, even positive law, cannot be defined otherwise than as a rule, that is precisely intended to serve justice.” in , ‘’Statutory Lawlessness and Supra-Statutory Law’’(1946), (2006), Oxford Journal of Legal Studies, Vol. 26, 1.

1.3 Course teachers

Name E-mail address Office Consultation
Course convenor Paulo Cardinal pauloccardinal@gmail.com TBA By email

Learning Outcomes

2.1 Course Learning Outcomes (CLOs) for this course

CLO 1 Describe and explain the international and constitutional framework of the SARs, especially regarding key concepts.

CLO 2 Find out, describe and explain the main differences in the above-said legal framework.

CLO 3 Understand and describe commonalities and differences brought up by the dynamics of action from divergence to a path of convergence.

CLO 4 Apply the knowledge and understanding provided by the course to detect and explain the possible main challenges for the SARs and possible avenues of evolution, especially bringing in a comparative perspective.

CLO 5 Demonstrate the usefulness of the use of the comparative law method in general, of comparative constitutional law in particular, and, especially, regarding Macau and Hong Kong.

2.2 LLM and JD Programme Learning Outcomes (PLOs)

Please refer to the following link:

LLM – https://course.law.hku.hk/llm-plo/

JD – https://course.law.hku.hk/jd-plo/

2.3 Programme Learning Outcomes to be achieved in this course



3.1 Assessment Summary

Assessment task Due date Weighting Feedback method* Course learning outcomes
Oral presentation plus class participation TBA 50% 1, 2 1, 2, 3, 4, 5
Research paper TBA 50% 1, 2 1, 2, 3, 4, 5
*Feedback method (to be determined by course teacher)
1 A general course report to be disseminated through Moodle
2 Individual feedback to be disseminated by email / through Moodle
3 Individual review meeting upon appointment
4 Group review meeting
5 In-class verbal feedback

3.2 Assessment Detail

To be advised by course convenor(s).

3.3 Grading Criteria

Please refer to the following link: https://www.law.hku.hk/_files/law_programme_grade_descriptors.pdf

Learning Activities

4.1 Learning Activity Plan

Seminar: 3 hours / week for 12 teaching weeks
Private study time: 9.5 hours / week for 12 teaching weeks

Remarks: the normative student study load per credit unit is 25 ± 5 hours (ie. 150 ± 30 hours for a 6-credit course), which includes all learning activities and experiences within and outside of classroom, and any assessment task and examinations and associated preparations.

4.2 Details of Learning Activities

To be advised by course convenor(s).

Learning Resources

5.1 Resources

Reading materials: Reading materials are posted on Moodle
Core reading list: TBA
Recommended reading list: TBA

5.2 Links

Please refer to the following link: http://www.law.hku.hk/course/learning-resources/