Constitutional Law and Inter-Regional Conflict of Laws:A Survey of Hong Kong and Macao 憲法與區際法律衝突：香港、澳門問題研討
HUANG Jin*
中文提要
該文通過討論憲法中的立法管轄權規範以及區際法律衝突與憲法中的立法管轄權規範的聨繫，進一步探討了憲法和區際法律衝突的各種關係。該文尤其考察了憲法，特別是《香港特別行政區基本法》和《澳門特別行政區基本法》，對中國內部隨着香港和澳門分別於1997年和1999年回歸中國所産生的區際法律衝突問題的影響。該文強调，在某種意義上，憲法決定着法制不統一國家内的區際法律衝突的産生、範圍和解決。
Ⅰ. Introduction
In the world, every country has its own constitutional law, no matter what it is, written or unwritten. Generally speaking, in a country’s legal system, its constitutional law is the fundamental law,has supreme legal authority and, in legal form, defines the basic system and basic tasks of the country. In fact, as one of basic issues in countries with several different legal systems, the issue of interregional conflict of laws is usually dealt with by their constitutional law.
In countries with several different legal systems (sometimes called countries with a composite legal system or plural-legal countries), the domestic laws are either territorial or personal in character. If territorial, they apply in different legal districts or regions. If personal, several legal systems apply throughout the entire territory of the country, but each governs only a specific category of persons according to their religion or ethnic origin. In both types of countries the question arises as to the circumstances when the country’s own law applies, when that of the various domestic legal systems is applicable and, if so, which. The last of these raises the question of so-called conflicts between legal systems within a state, which are either “inter-regional conflicts” or “inter-personal conflicts”.①
Inter-regional conflict of laws refers to conflict of laws between different regions with a separate system of law within a sovereign country. It arises from civil contacts and commercial transactions among people from different regions within a sovereign country. ②This concept has different names or expressions in different countries and academic works because of the different specific situations of each country with a composite legal system. It is also called “noninternational conflict of laws”, “internal conflict of laws”, “inter-local conflict of laws”,“inter-territorial conflict of laws”,“inter-provincial conflict of laws” (between the laws of the provinces of Canada), “inter-cantonal conflict of laws”(between the laws of the cantons of Switzerland),“interstate conflict of laws” (between the states of theUnited States and Australia), etc.③On the basis of the classification of countries, inter-regional conflict of laws are divided into two types, namely one within federal countries with a composite legal system, and the other within unitary countries with a composite legal system.④One of the most important conditions on which interregional conflict of laws relies for existence is that there are composite legal systems within a country, which are always provided, reflected or established by that country’s constitutional law. Therefore, the issue of inter-regional conflict of laws within a country is closely related to that country’s constitutional law.
With the raising of the concept of “one country, two systems”⑤ and the conclusion of the Joint Declaration of the Government of People’s Republic of China and the Government of the United Kingdom of Great Britain and Northern Ireland on the Question of Hong Kong (hereinafter referred to as the Sino-British Joint Declaration) signed on December 19, 1984,⑥and the Joint Declaration of the Government of the People’s Republic of China and the Government of the Republic of Portugal on the Question of Macao (hereinafter referred to as the Sino-Portuguese Joint Declaration ) signed on March 26, 1987,⑦as well as the promulgation of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter referred to as the Basic Law of the HKSAR) adopted at the 3rd Session of the 7th National People’s Congress on April 4, 1990, and the Basic Law of the Macao Special Administrative Region of the People’s Republic of China (hereinafter referred to as the Basic Law of the Macao SAR) adopted at the 1st Session of the 8th National People’s Congress on March 31, 1993, the issue of China’s inter-regional conflict of laws will be given more and more attention. This is because, in accordance with the concept of“one country, two systems”and the above two Joint Declarationsand Basic Laws, the current laws in Hong Kong and Macao will remain basically unchanged after the Chinese Government resumes the exercise of sovereignty over Hong Kong and Macao in 1997 and 1999 respectively. If the situation of Taiwan after peaceful unity is considered, China will become one country with two systems, three law families and four legal regions or law districts. Inter-regional conflict of laws will arise unavoidably between the laws of the above three areas and the law of Mainland China. For this reason, it is very necessary for us to approach a relationship between inter-regional conflict of laws and constitutional law in China.
Ⅱ. Rules Determining Legislative Jurisdiction in Constitutional Law
Legislative jurisdiction is the sphere of competence enjoyed by legislators, and rules determining legislative jurisdiction are that which have the function of determining the sphere of operation of national legislation and of the regional legal systems respectively. In countries with a composite legal system, the division of legislative jurisdiction between the center and the regions is usually done. The rules determining this division are the rules determining legislative jurisdiction. This is very different from the international situation. In international society, every sovereign country is equal, there is not a world government over all the countries. Each country, based on sovereignty, has power to make laws in any area. Naturally, when every country makes laws, especially laws concerning foreign elements, it has to consider respecting for the general principles, rules and systems of international law and the sovereignty and interests of other countries, in order to obtain other countries’respect for its own laws.
Since the rules determining legislative jurisdiction touch upon the structure of the state (from the legislative point of view), determine the sphere of operation of national legislation and of the regional legal systems respectively and define the composite legal structure of the country in question, they are rules of constitutional law in substance, even if they are not in form part of the constitution. In fact, such rules may stem not only from the constitution but from constitutional ordinary laws or constitutional custom. For example, rules determining legislative jurisdiction are generally provided in the constitution within federal countries with a composite legal system. Article 51 of the Commonwealth of Australia Constitution Act is a provision determining legislative jurisdiction. It provides that matters such as trade and commerce among the States, banking among the States, insurance, bills of exchange and promissory notes, bankruptcy and insolvency, copyrights, patents of inventions and designs, trade marks, foreign corporations, marriage, divorce, parental rights and the custody and guardianship of infants belong to the sphere of legislative jurisdiction of the Commonwealth Parliament. In the United Kingdom, the operation of English law in England, of Scots law in Scotland, of Northern Ireland’s law in Northern Ireland, etc. is due to constitutional custom. The constitutional principles, rules and practice have never been codified, scattering in the different written acts and customary laws, this is to say, no written constitution exists, in the United Kingdom. Therefore, rules dividing legislative jurisdiction among its domestic law districts (England, Scotland, Northern Ireland and so on) mainly stem from constitutional custom.⑧
The constitutional nature of rules determining legislative jurisdiction means that it is only countries, in their capacity of sovereign entity, who have power to make rules dividing legislative jurisdiction into two groups, national and regional, or to make adivision between topics falling within the legislative jurisdiction of the country and of the regions (which may be uniform for all the law districts or may differentiate between them). Such a division is relevant to judicial-constitutional purposes and is very necessary in countries with a composite legal system, for it solves a fundamental organizational need of such countries. Indeed, if such a country were to abstain from determining the respective spheres of operation of its own laws and of the various regional legal systems, it would open to anarchy a fundamental sector of its organization.
Ⅲ. Rules Determining Legislative Jurisdiction in Constitutional Law and Inter-regional Conflict of Laws
Rules determining legislative jurisdiction are closely related to inter-regional conflict of laws. First of all, logically speaking, the existence of rules determining legislative jurisdiction in countries with a composite legal system is a prerequisite for the emergence of interregional conflict of laws in those countries, for the rules determining legislative jurisdiction define the composite legal structure of the country in question and precede logically the possible inter-regional conflict of laws. Even if in practice the distinction between rules determining legislative jurisdiction and inter-regional conflict rules is not always recognized clearly, it appears to us to be essential for understanding the special nature of inter-regional conflict of laws within a country.
Secondly, rules determining legislative jurisdiction define the sphere of inter-regional conflict of laws within a country having a composite legal system. The rules determining legislative jurisdiction may, under normal conditions, make a clear division between the central and the regional, provide definitely how much legislative jurisdiction each region has. This means that how different and special each region’s legal systems are, and in which field of civil or commercial law inter-regional conflict of laws will emerge. For example, Article 1, Section 8 of the United States Constitution of 1787 is a group of rules determining legislative jurisdiction. It provides that commerce among the several States, bankruptcies, maritime matters, patent and copyright, etc. are regulated by the federal Congress. This decides that, in the fields as mentioned above, there are uniform federal laws, and no inter-regional conflict of laws exists. Only beyond these matters, may each State make its own laws which are possibly different from the laws of other States, and are there inter-regional conflicts among the several States.
Thirdly, rules determining legislative jurisdiction decide the solution of inter-regional conflict of laws. In general, to make an inter-regional conflicts law is one way of solving inter-regional conflict of laws. In practice, national uniform inter-regional conflicts law is applied to solve inter-regional conflict of laws in one country with a composite legal system, regional inter-regional conflicts law in another country, and both national uniform and regional inter-regional conflicts law in another country. Which type of inter-regional conflicts law to be applied is decided by the rules determining legislative jurisdiction of the country in question. For instance, Article 281, Clause 15 of the Constitution of the Socialist Federal Republic of Yugoslavia of 1974, which was replaced by the new Constitution of the Republic of Yugoslavia of 1992, provided that“to adopt measures to resolve conflict of laws between one Republic and the other Republics or Autonomous Provinces”was under the federal jurisdiction of Yugoslavia. This rule decided that inter-republican conflicts law was uniform throughout Yugoslavia at that time.⑨
Fourthly, in some countries with a composite legal system,which have both national uniform and regional inter-regional conflicts laws, which case should be dealt with by the national uniform interregional conflicts law and which case should be dealt with by the regional inter-regional conflicts law are decided by the rules determining legislative jurisdiction of the country concerned. In the United States, the 50 member States and the District of Columbia, which make up the American federal country, owe their legal diversity not only to historical reasons but also to a pre-existing political and constitutional basis. As a result, the legislative organs of the various member States are able not only to pass laws of their own, but unwritten law itself, i.e. the common law, may be interpreted autonomously within their jurisdiction by the judicial authorities of these States. The federal courts are bound to comply with the interpretation of the common law as administered in the member States in which the federal court sits. Previously, the Federal Supreme Court in Swift v. Tyson⑩ had held that federal courts must take into account the legislative enactment of the State in which they operate, but are free to interpret the common law themselves; the federal courts in so-called“iversity cases”(between citizens of different member States) should apply the“general common law”. However, the Federal Supreme Court in Erie Railroad v. Tompkins(11) stated that no federal common law existed side by side with that of the various member States and the federal courts in so-called “diversity cases”should apply the common law of that member State referred to by the conflict rule. Three years later, the Federal Supreme Court in Klaxon v. Stentor Electric Manufacturing Co.(12) stated that, only in the sphere of matters under the federal jurisdiction provided by the American Constitution, were there uniform conflict rules throughout the United States; in most cases, the rules for resolving interstate conflict of laws are the common law of the member States, which are also entirely unwritten and are developed autonomously by the various member States; the federal courts in“diversity cases”also must resort to the choice-of-law rules of the State in which they sit. The above-mentioned practice of the United States makes clear that not only the existence but application of inter-regional conflicts law are decided by the rules determining legislative jurisdiction.
Finally, it should be pointed out that if countries with a composite legal system intend to eliminate or partly eliminate interregional conflict of laws within their territory, they may do so by way of changing the substantive contents of rules determining legislative jurisdiction, for the emergence, sphere and resolution of inter-regional conflict of laws are limited by the rules determining legislative jurisdiction. Thus, one can say that to change rules determining legislative jurisdiction in constitutional law is one kind of legal means to eliminate or partly eliminate inter-regional conflict of laws. At least one can say that it is the legal expression of eliminating or partly eliminating inter-regional conflict of laws. However, to change rules determining legislative jurisdiction means to amend rules of one country’s constitution. Usually, it is subject to the complicated process of amending the constitution, and not easy to do so.
In short, rules determining legislative jurisdiction in constitutional law have played an important role in the field of interregional conflicts law. A study of inter-regional conflict of laws and inter-regional conflicts law must be accompanied by a study of rules determining legislative jurisdiction in constitutional law because the latter is a special way of understanding and grasping the essence of inter-regional conflict of laws and inter-regional conflicts law.
Ⅳ. Constitutional Law and Inter-regional Conflict of Laws among the Mainland, Hong Kong and Macao in the United China
For five decades, ever since the People’s Republic of China (PRC) was established in 1949, China has had a unitary socialist legal system with a single law district.(13)Moreover, the Chinese political and legal culture prefers harmony to conflict and unity to multiplicity.(14) Nevertheless, inter-regional conflict of laws were the inevitable result of Deng Xiaoping’s quest to reunite Hong Kong, Macao and Taiwan with Mainland China. Deng Xiaoping’s policy, known as“one country, two systems”, has been incorporated by the PRC in two joint declarations--the Sino-British Joint Declaration for the return of Hong Kong in 1997, and the Sino-Portuguese Joint Declaration for the return of Macao in 1999. China’s policy was reaffirmed in the two basic laws which will serve as mini-constitutions for two Special Administrative Regions (SARs): the Basic Law of the HKSAR(15)and the Basic Law of the Macao SAR. Since July 1, 1997, the Government of the PRC has resumed the exercise of sovereignty over Hong Kong, and preparations for the return of Macao to the PRC have already begun. Thus, inter-regional conflict problems are emerging.
What is the relationship between the constitutional law and interregional conflict of laws in the legal framework after the hand-over of Hong Kong and Macao?
1. INTER-REGIONAL CONFLICT OF LAWS WITHIN A UNITARY COUNTRY
In the Constitution of the PRC (1982), only Article 31(16) is directly concerned with the HKSAR and the Macao SAR. Most articles of this Constitution will not be applied in the SARs.However, this does not mean that its provisions will not have an indirect influence upon the SARs. According to this Constitution, China is an unitary country, not a federal country. The two Basic Laws also provide that the SARs are an inalienable part of the PRC.(17) So the emerging inter-regional conflict problems in China are distinctly different from the conflict issues that arise within a federal country. The degree of high autonomy enjoyed by the SARs will be much greater than the rights of member states within a federal country such as Australia, Canada and the United States, yet, the high autonomy of these regions exists only by special grant of China’s constitutional law (including the two Basic Laws), and the SARs are therefore only local administrative regions under the leadership of the central government. This is quite different from the relationship between a federal government and the member states within a federal system. The special design of the SARs will prevent China’s interregional conflict of laws from developing into international conflict of laws.(18)
2. INTER-REGIONAL CONFLICT OF LAWS UNDER THE MINICONSTITUTIONS
The Constitution of the PRC (1982) has not any direct provision concerning inter-regional conflict of laws, but both the Basic Law of the HKSAR and the Basic Law of the Macao SAR do. Undoubtedly, both of them are constitutional laws adopted by the National People’s Congress, which will serve as mini-constitutions for the two SARs and will be complied with by the other regions of China. So China’s inter-regional conflict problems after the hand-over, including the emergence, sphere and resolution of inter-regional conflict of laws, will be decided in essence by the two mini-constitutions. This situation is very different from that of the other countries with a composite legal system, in which it is only a constitution that gives some rules concerning inter-regional conflict of laws.
3. INTER-REGIONAL CONFLICT OF LAWS WITH COMPREHENSIVE SCOPE
In accordance with the two Basic Laws, the SARs shall be a local administrative region of the PRC, which shall command a high degree of autonomy, including possession of executive, legislative and independent judicial power. The Central People’s Government shall be responsible for both the foreign affairs relating to and the defense of the SARs. Article 8 of the Basic Law of the HKSAR provides that the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene the Basic Law, and subject to any amendment by the legislature of the HKSAR. Article 18 further provides that the laws in force in the HKSAR shall be the Basic Law, the laws previously in force in Hong Kong as provided for in Article 8, and the laws enacted by the legislature of the HKSAR. National laws shall not be applied in the HKSAR except for those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of the HKSAR as specified by the Basic Law of the HKSAR. This means that the SARs have full or complete legislative jurisdiction over the civil and commercial matters. This is to say, during the initial stage, when Hong Kong and Macao return to China, the SARs will have so little in common with the legal system of the Mainland, especially in the field of civil and commercial matters, and the scope of inter-regional conflict of laws is very comprehensive and may approach the level of international conflict of laws. As far as the frame of constitutional law concerned, the process of achieving a national uniform legal system will be slow and difficult, and perhaps ultimately impossible.
4. THE RESOLUTION OF INTER-REGIONAL CONFLICT OF LAWS UNDER“ONE COUNTRY, TWO SYSTEMS”FORMULA
In respect of the application of law, how to resolve inter-regional conflict of laws is not dealt with in the two Basic Laws. From the viewpoint of a conflict-of-laws jurist, no provision on this subject in the two Basic Laws is a defect of them. However, in the area of judicial assistance, the two Basic Laws provides that the SARs may, through consultations and in accordance with law, maintain judicial relations with the judicial organs of other parts of the country, and they may render assistance to each other. (19)This provision is a basis for judicial assistance between the Mainland and the SARs in China. But it is principled and hard to operate. The concretization of this provision in the near future after the hand-over is very necessary.
According to the two Basic Laws of the SARs, the laws made by the Central which will be applied in the SARs after the hand-over, will be only the Basic Law and those respecting defense and foreign affairs as well as other matters outside the limits of the autonomy of the SARs. Obviously, the Central has not any legislative jurisdiction for making national uniform inter-regional conflicts law, and the legislative jurisdiction for making inter-regional conflicts law belongs to the SARs. As a result, the SARs will have their own inter-regional conflict rules, the Mainland will too. This situation, allowing each region to work out its own inter-regional conflict rules, would likely result in the development of widely divergent provisions among the regions, which would lead to further conflicts, i.e. clashes between inter-regional conflict rules of the different regions. Furthermore, such conflicts would only increase the complexity of inter-regional conflict of laws, leading to problems of“forum shopping”, renvoi, transmission, and making characterization more complicated than ever.
Lastly, in contrast to other countries with a composite legal system, China has no supreme judicial organ to coordinate and to resolve inter-regional conflict of laws among the independent courts of the SARs because each SAR will have a court of final adjudication which will be independent of all other regional and Mainland’s courts in accordance with the two Basic Laws.
Ⅴ. Conclusion
To a certain extent, constitutional law decides the emergence, sphere and solution of inter-regional conflict of laws within countries with a composite legal system. This is/will be how things stand with the return of Hong Kong in 1997 and Macao in 1999 to China even though the situations in China are much more special. Therefore, we have to pay more attention to the effects of constitutional law, especially the two Basic Laws, on the inter-regional conflict of laws issues which result from the policy of “one country, two systems”when we research them.
* Professor of Law, Wuhan University Law School, China; former Jurist, the Legislative Affairs Office of Macao Government; Vice-President, Chinese Society of Private International Law; Arbitrator, China International Economic & Trade Arbitration Commission (CIETAC); Ph.D., LL.M., Wuhan University; LL.B., Hubei Institute of Finance & Economics; Fulbright Scholar, Yale University Law School (1993-1994).
Note:
①See K. Lipstein, Private International Law, in International Encyclopedia of Comparative Law, vol. Ⅲ, 9-3 (1985).
②For a discussion of the concept and characteristics of inter-regional conflict of laws, see Huang Jin, QUJI CONGTUFA YANJIU (A STUDY OF THE INTER-REGIONAL CONFLICT OF LAWS) 91-104 (1991).
③See Ⅰ. Szaszy, CONFLICT OF LAWS IN THE WESTERN, SOCIALIST AND DEVELOPING COUNTRIES 233 (1974).
④See supra note 1, at 9-4, 9-11.
⑤The strategy of“one country, two systems”emerged in late 1978 when Deng Xiaoping formulated his policy for the peaceful settlement of the Taiwan question. See Deng Xiaoping’s Talk with Yang Liyu, in DENG XIAOPING WENXUAN (SELECTED WORKS OF DENG XIAOPING) 230 (1993).
⑥23 I.L. M. 1371. For comments, see Michael Davis, Where Two Legal Systems Collide:An American Constitutional Scholar in Hong Kong, 20 CASE W. RES. J. INT’L L. 127, 145 (1988); David M. Corwin, China’s Choices:The 1984 Sino-British Joint Declaration and Its Aftermath, 19 L. & POL’Y INT’LBUS. 505 (1987).
⑦BEIJING REV., Apr. 6, 1987, at Ⅲ.
⑧For a discussion of the situations of the United Kingdom, see V. Knapp, National Reports, in International Encyclopedia of Comparative Law, vol. Ⅰ, U-59 (1976); Huang Jin, supra note 2, at 148-149.
⑨see Huang Jin, supra note 2, at 150.
⑩16 Pet. 1, 10 L. Ed. 1 (1842).
(11)304 U.S. 64 (1938).
(12)313 U.S. 487 (1941).
(13)Article 5 of the PRC Constitution provides:“The State upholds the uniformity and dignity of the socialist legal system. No laws or administrative or local rules and regulations may contravene the Constitution.”
(14)See Albert H. Y. Chen, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE’S REPUBLIC OF CHINA 9-10 (1993).
(15)See Albert H. Y. Chen, From Colony to the Special Administrative Region: Hong Kong’s Constitutional Journey, in The Future of the Law in Hong Kong 76, 76-126 (R. Wacks ed., 1989).
(16)According to this article, the state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the specific conditions.
(17)Article 1 of the Basic Law of the two SARs.
(18)Conflict of laws can be divided into two levels: domestic and international. Their nature is different. Domestic conflict of laws exists among different legal regions within a sovereign country (i. e., interstate conflict of laws in the United States). International conflict of laws crosses national boundaries and exists among different sovereign countries.
(19)Article 95 of the Basic Law of the HKSAR and Article 93 of the Basic Law of the Macao SAR.
