This thesis addresses issues surrounding Chinese constitutional arrangement to Tibet, Hong Kong, and Taiwan. It contends that in light of the Chinese State’s constitutional accommodation of, and integration with, the peripheral societies of Tibet, Hong Kong, and Taiwan, a re-conceptualisation of Chinese constitutional law in on the verge of maturity, which, informed by realistic ideals, would be conductive to establishing a constitutional order of peace and stability that is embodied in a legal structure in which multiple societies, as self-governing people-s, could sustain healthy constitutional relationship and abstain from violent conflicts.

This thesis was written on the constitutional changes of contemporary China, with the 1982 Constitution as the object of researches. This constitution is the currently valid constitution in China, and is expected by constitutional scholars to be put in “juridification”. However, for thirty years since its birth, this task is yet to be realized. What is more, the claim of “judicialization of the constitution” as Chinese legal constitutionalists held especially during the 1990s, is now contested by emergent constitutional schools as one of many constitutions in China. They are arguing that China’s constitutional reality should not be colonized by the Western-originated constitutional science –classical constitutionalism. Having perceived the critical merits of China’s new constitutional schools, this thesis is wary of confirming unconditionally the other end of arguments, namely, applying critical theories to condense into “constitutionalism with Chinese characteristics”. The use of “constitutionalism” to describe the Chinese model, however, should be examined against whether it has indeed resolved the material problems in China’s constitutionalization, or is merely an inflationary application of the terminology. If China’s legal constitutionalism is seen as implanting formalism of Hayekian theory in service of global capitalism, in the second-generation constitutional discourse, have we opted out of this mentality and re-constituted ourselves? Constitutionalization in contemporary China hence is a complex issue covering the grounds of institutional, political as well as conceptual controversies, more than a practical issue of applicable mechanisms. The conceptual arguments on “what is constitutional” are especially challenging to classical constitutionalism, when combined with “identity politics” and “constitutional pluralism”. Between the material and conceptual level, I am insisting that the ‘democratic deficit’ caused by China’s 1990s economic reforms and the market mentality still needs a redress, before we could render its hybrid outcomes as “constitutionalism with Chinese characteristics”.

The scholarly consensus on the political foundations of independent constitutional review – that it invariably stems from electoral and inter-branch competition – has been weakened by recent empirical discoveries which demonstrated that constitutional courts in a number of authoritarian states are actually more activist than previously assumed. This dissertation examines this phenomenon using the case of Hong Kong, an authoritarian polity first under the sovereignty of Britain and then of China. It is widely believed that the competence of the Hong Kong Court of Final Appeal – a cosmopolitan common law final appellate court – to strike down legislative and executive acts, and its ability to induce the regime’s compliance with its rulings, is intrinsic to the Basic Law, just as it is in liberal democracies. Nevertheless, two interrelated anomalous phenomena – the Court’s repeated issuance of activist rulings with near-complete impunity, and the continuing forbearance of China’s foremost constitutional authority, the National People’s Congress Standing Committee (NPCSC), faced with the Court’s aggressive assertions – necessitates careful explanation. This dissertation proposes an explanatory Constitutional Investment Theory, which highlights the similarities between “investment” in constitutional review and investment in financial assets, to explain the activation, consolidation, and ascendancy of independent constitutional review in authoritarian settings. It shows how strong incentives to signal its ideological commitment to the “One Country, Two Systems” scheme, both internationally and domestically, first drove the NPCSC to acquiesce in the Court’s self-aggrandisement; how internal divisions within and external opposition to the Hong Kong regime have rendered retaliation a costly option; and how the Court’s strategic resolution of the Basic Law’s ambiguities has encouraged continuous political investment in its jurisdiction and autonomy. Altogether, these have contributed to the formation of a dynamic equilibrium of constitution control, under which the Court and the NPCSC dynamically developed their own jurisprudence within their respective bailiwicks.

This dissertation analyses the ability of Chinese lawyers to use administrative litigation to protect individuals and groups from an authoritarian state that frequently infringes on their rights. These plaintiffs fill administrative courts in China, opposing the overzealous tactics of police, challenging the expropriation of their land, and disputing the seizure and demolition of their homes. Empirically, it relies on several unique data sources in a mixed-methodological approach. Qualitative and small-n quantitative data from 126 interviews with a random sample of Chinese lawyers and 52 additional interviews are supplemented by documentary sources. These findings are then tested against official data and a large survey of Chinese lawyers. This research demonstrates that administrative litigation is part of a polycentric authoritarian system that helps the Chinese state to monitor its agents, allows limited political participation, and facilitates economic development (Chapter One). By giving ordinary Chinese a chance to hold their local governments accountable in court, administrative litigation represents a significant step towards rule of law, but its limited scope means that it has not been accompanied by dramatic liberalisation (Chapter Three). In part, this is because the most prolific and successful administrative litigators are politically embedded lawyers, insiders who challenge the state in court but eschew the most radical cases and tactics (Chapter Four). The tactics that allow politically embedded lawyers to successfully litigate administrative cases rely on and contribute to China’s polycentric authoritarianism by drawing in other state, quasi-state, and non-state actors (Chapter Five). Multinationals in China are largely failing to contribute to the development of China’s legal system because they readily accept preferential treatment from the Chinese state as an alternative to litigation (Chapter Six). While administrative litigation bolsters China’s polycentric authoritarianism in the short term, it offers tremendous potential for rationalisation, liberalisation, and even democratisation in the long term.