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830 notre dame law review [vol. 92:2 accepted by the institutions, officials, and, perhaps a portion of the citizenry, if the state is to function. 50 In an established state this rarely presents significant problems—legal disputes do not normally extend so far back into the constitutional order—but the constitutional foundations of a new state are more exposed; the tradition of constitutional acceptance has yet to be established. Indeed, courts in transitional situations may be called upon to do no less than to declare the locus of sovereignty. We will examine cases of that sort in Section A, and then look at special problems posed by ongoing treaties in Section B. A. Transitions and the Locus of Sovereignty There are at least three groups of transitional situations in which courts, especially supreme courts, may engage with the foundational rules of new states. First, and least controversially, the courts may explicitly endorse the new constitutional order. The judges’ public acceptance of the constitutional foundations of the new state is a significant act of acceptance in itself and, also, provides a signal that other state officials and citizens should also endorse the constitution. Often, this will require the judges to legally endorse a pre-existing political consensus, and, even if there is no legal authority for the outcome, the political good sense of the decision is not in doubt. Secondly, and far more controversially, the judges may be asked to resolve a dispute over the very existence of the state. It may be unclear whether a new constitutional territory has emerged, or whether an older constitutional order continues to prevail over the territory. On rare occasions, the court may have the capacity to resolve the dispute even when there is no political consensus. Finally, the courts may sometimes act as midwives to new constitutional orders; handing down decisions that may help solidify political consensus around the emergence of a new state or, at least, creating constitutional space in which that political consensus can emerge. It is not uncommon to find judicial statements about the foundations of constitutional orders in the years after independence. Perhaps the most recent example of such a case is found in the Hong Kong Court of Appeal. In Hong Kong v. Ma Wai-Kwan, 51 the Hong Kong Court of Appeal considered the continuing applicability of common law rules to the law of Hong Kong. It decided that these rules remained part of that legal order, but only because the Basic Law incorporated them into the system. 52 The foundation of the legal order had shifted from English law 53 to the indigenous Basic Law: even though the vast bulk of the laws of Hong Kong remained constant, 50 Or, to complicate matters, it may be more accurate to say that the validity of some or all of a set of foundational rules must be accepted. See N.W. BARBER, THE CONSTITUTIONAL STATE 145–71 (2010). 51 [1997] 2 H.K.L.R.D. 761 (C.A.) (H.K.). 52 Id. 95. 53 The pre-1997 Hong Kong legal order rested on the exercise of a prerogative power. See Albert HY Chen, The Interpretation of the Basic Law—Common Law and Mainland Chinese Perspectives, 30 H.K.L.J. 380, 417–20 (2000).

2016] courts in the constitutional order 831 their constitutional foundation had changed. Hong Kong had become a part of China; sovereignty over the territory had shifted. Albert Chen has described this as amounting to a replacement of the grundnorm: the changing loyalties of the judges altered the fundamental rule of the Hong Kong legal order, a change mandated by the new political consensus over the basis of Hong Kong’s constitution. 54 Hong Kong is not, of course, a state—though, as we shall see, the ambiguities around its constitutional status make it a particularly interesting lens through which to examine the role of the courts—but the type of decision seen in Ma Wai-Kwan is one found in many post-independence polities. In the case of The State (Ryan) v. Lennon, 55 for example, the Supreme Court of the Irish Free State identified the Irish Constitution 56 as the fundamental law of the nation, the legitimacy of which rested on the Third Dáil Éireann sitting as a constituent assembly and articulating the will of the Irish people. 57 Similarly, in the Australian case of Sue v. Hill 58 the High Court declared that the Australia Act 1986 had succeeded in bringing about Australian constitutional independence, whilst in Leeth v. Commonwealth 59 the court identified the Australian people as providing the foundational legitimacy of the Australian state. 60 The Hong Kong and Australian decisions were relatively uncontroversial. In these cases the courts endorsed a shift in sovereignty that had previously been endorsed by the body ceding power—not only was there general agreement within these territories over the desirability of independence, but there was, also, agreement between these new states and the old imperial power: Britain. 61 The Irish example proved more difficult. Whilst the Dáil presented itself as a constituent assembly, a body competent to craft a constitution for an independent state, and whilst the Irish Supreme Court subsequently endorsed this view, a rival understanding of the constitutional status of Ireland was expressed by the old imperial institutions. At around the same time the Dáil enacted the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, the United Kingdom Parliament enacted the Irish Free State Constitution Act 1922. 62 These two legal instruments were largely similar, 63 save that the first provided an indigenous grounding for the Irish Constitu- 54 Id. at 418. 55 [1935] 1 IR 170 (H. Ct.) (Ir.). 56 CONSTITUTION OF THE IRISH FREE STATE 1922. 57 K.C. WHEARE, THE CONSTITUTIONAL STRUCTURE OF THE COMMONWEALTH 90–92 (1960). 58 (1999) 199 CLR 462 (Austl.). 59 (1992) 174 CLR 455 (Austl.). 60 See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (Austl.); cf. Re: Objection to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793 (Can.) (rejecting the oneprovince veto as contrary to the principle of equality of the provinces). 61 See Australia Act 1986, c. 2 (UK); Hong Kong Act 1985, c. 15 (UK). 62 Irish Free State Constitution Act 1922, 13 Geo. 5 c. 1 (UK). 63 There were some important differences that are not relevant for our purposes. See WHEARE, supra note 57, at 93.

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