The Evolution of Constitutional Adjudication in the Chinese Special Administrative Regions: Theory and Evidence

Abstract

Under what conditions will two subnational supreme courts diverge fundamentally in their understandings of, and approaches toward, constitutional adjudication, in spite of being invested with identical jurisdictions and overseen by a shared sovereign, within roughly the same time frame? China’s two autonomous Special Administrative Regions (SARs), Hong Kong and Macau, possess constitutional frameworks that are nearly the same, yet their paths of judicial review of legislation could not be more different. While the Chinese SARs commonly feature undivided governments returned by rigged electoral systems dominated by the pro-establishment blocs in their respective polities, the Hong Kong Court of Final Appeal has repeatedly nullified unconstitutional acts of the legislature with finality, while the Macau Tribunal de Ultima Instância has never challenged the validity of legislation at all. This study argues that such divergence can hardly be blamed on the differences between Hong Kong’s English common law and Macau’s Portuguese civil law heritages. It reveals, with the aid of a theoretical framework that integrates the concept of transaction costs into the strategic model of judicial review, that factional infighting inside, and formidable popular resistance against, Hong Kong’s ruling elite have disabled the government to credibly threaten the Court while reinforcing demand for judicial review of unpopular statutes. By contrast, high levels of executivelegislative harmony, minimal popular unrest, and weak pressures to democratize have rendered it very difficult for the Macau Tribunal to defy its government with impunity. Overall, this study contributes to several increasingly important academic fields, including comparative Chinese law, subnational constitutional law, and judicial review in authoritarian polities.