ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

2 BETWEEN ETHNIC IDENTITIES AND
NATIONAL IDENTIFICATION:
REVISITING CHINA’S REGIONAL
NATIONAL AUTONOMY
Many societies are multi-national in composition. As
the fundamental mechanism of nation building, modern
constitutions provide both constitutional arrangements
to govern over territory and the constitutional
narrative to forge a common identity for its people.
However, a constitutional institution does not automatically
achieve these two goals.
China’s case of Regional National Autonomy can
well illustrate the institutional tension between the regional
autonomy and the national unification. If considering
China as a one party state, RNA functions
both as a special institution with autonomous powers
authorized to all three-tied legislative bodies and
governments and as a “basic policy” of the Chinese
Communist Party (CCP) in dealing with China’s multiethnicity
to forge a modern state as well. In the panel
presentation, we will analyze RNA through a constitutional
realism approach, with a special contribution
from the story of Quebec as compared.
Participants Han Zhai
Chasidy Alexis
Zhang Jian
Name of Chair Yang Guodong
Room UL6 2103
Han Zhai: RNA interlaced with the unitary system
RNA and its legislative powers
RNA is entrenched in Article 30 in the 1982 Constitution
of the PRC, and it is interlaced with the Unitary
System through all three tiers of national administration
division. The autonomous power is vested with the
governments in the areas to exercise. Still under both
Article 4.3 and Article 30 of the 1982 Constitution, the
RNA Law will further be interpreted in a systematic
way. A state teleology become more significant when
considering the RNA Law the State shoulders the legal
obligation to realise the substantial equality between
ethnic minorities and Han Chinese. The central control
over the autonomous powers, which has been institutionalised
into the constitutional framework.
A feasible angle to assess the RNA is the exercise
of legislative power of autonomous areas. A general
observation is that the autonomous legislation has
made remarkable improvements since 1978, the reform
era does not see any significant expansion of
autonomous legislation in number.
Chasidy Alexis: The Quebec Secession Movement
in the Eyes of Indigenous People
In Canada, Indigenous peoples are governed under
the legal paradigm of Aboriginal Law, which contains
many boundaries and layers that govern the rights and
Concurring panels 28
duties of Aboriginal peoples and Aboriginal Lands. This
is seen in the legal terminology of Treaty Status, Non-
Treaty Status, Aboriginal Title and Aboriginal Rights.
Both, the common and civil law, create several delineating
binaries of distinguishing what is permissible
and what is not for Indigenous peoples residing in
Canada. As a result of this, several tensions are created
between groups, mainly those seeking to exercise
such rights and duties. Finding cultural legal spaces to
exercise such rights is not only pervasive but limited
in the Canadian Law context. In particular in Quebec,
which claims to have historical roots in France and
governs its citizens as a sub-national entity of both
Canada and France. Placing Indigenous peoples in
this construct presents several cultural pluralities in
terms of succession.
Zhang Jian: National Context Matters:
Reconsidering the Comparative Methodology
in Constitutional Law research
Different cases of ethnic autonomy reveal a sharp
contrast in constitutional arrangements, ethnic policy,
historic tradition, etc. These elements, in fact, formulate
the national context of constitutional issues that
should be identified by comparative constitutional lawyers.
According to the classic functionalism methodology,
comparative study is supposed to start from the
‘same question’, trying to find various solutions in different
countries. However, behind similar institutional
designs, the value-orientations are in high diversity,
which weakens the feasibility of ‘same question’ when
doing comparison. Therefore, we argue that national
context matters in comparative constitutional study,
not only because of the national constitutional uniqueness,
but also subject to multiple modernity and its
display in different national histories. This position
requires a historical and sociological approach into
comparative constitutional law research beyond the
doctrinal study.