Jerome A. Cohen. A Constitutional Court For China? Taiwan’s Example. The China Times

October 29, 2009

Did the Chinese government’s recent refusal to allow Shanghai writer Li Jianhong to return to her country violate the Chinese Constitution’s human rights guarantees?

There is no effective way to enforce constitutional rights in China. The Standing Committee of the National People’s Congress has power to do so, but although it has interpreted Hong Kong’s Basic Law and prepared to handle constitutional claims, thus far it has avoided them. China’s courts, by contrast, have sometimes been eager to enforce constitutional rights and are bombarded with requests from increasingly rights-conscious citizens. Yet they are prohibited from responding. Some innovative judges implicitly implement constitutional values, but those who explicitly invoke the Constitution usually get their knuckles rapped.

Some mainland law reformers favor establishing an independent constitutional court, similar to the widely-influential German model, but Communist Party leaders reject judicial independence at any level. Some experts argue that China’s authoritarian heritage cannot accommodate a constitutional court whose interpretations would bind government and party.

Can contemporary Chinese political culture sustain a constitutional court? The best evidence is Taiwan, which has long had a Council of Grand Justices that serves as a constitutional court. During the decades of Kuomintang dictatorship over the island, the Council was mere window-dressing for supposedly “Free China”. But, in the last generation, as Taiwan developed a true democracy, the Council made many major contributions to the political system, rule of law and human rights.

During the past two years, for example, Council interpretations stimulated the government to cease imprisoning people for being “hooligans” (liumang), invalidated the monitoring of lawyers’ conversations with detained clients and vindicated the right of detainees to petition courts about unacceptable custodial conditions.

Just this month, Council Interpretation 665 responded to former president Chen Shui-Bian’s requests regarding several issues that arose during the first trial of his ongoing corruption prosecution. Although the Council did not invalidate Chen’s conviction or his pre-conviction detention, it did elucidate the principles governing mid-trial changes of judges. Moreover, in order to avoid violating defendants’ constitutional right to generally remain free before conviction, it interpreted the Criminal Procedure Law to require prosecutors seeking to detain a defendant pending trial to convince the court that he might flee or tamper with evidence and that there is no feasible way to address these risks except detention.

The Council deserves Beijing’s study. Its fifteen justices are appointed by the president with the approval of the legislature for non-renewable eight-year terms. A two-thirds majority is necessary for any interpretation. The justices come largely from academic and judicial backgrounds. Seven of the current group were law professors, five were judges, one a prosecutor and two were officials. (Unfortunately, only two are women.) Since the Council is loosely modeled on Germany’s Constitutional Court, it is not surprising that eight justices received German training, while only four did advanced work in the United States.

Ten of the present group were nominated by ex-president Chen, when the opposition KMT controlled the legislature, and five by President Ma Ying-jeou, whose KMT continues to dominate the legislature. Although their voting records require detailed analysis, it may prove difficult to correlate most justices’ opinions with those of the authority that appointed them.

In Interpretation 665, in addition to the main opinion, there were no fewer than six separate opinions concurring and dissenting on certain issues. Four were by Chen appointees and two by Ma’s. Although the four dissenters were all Chen appointees, six other Chen appointees did not issue a separate opinion of any kind. All separate opinions were by former academics, five of them German-trained. In these circumstances one can understand why the Council took longer than expected to reach even minimal consensus despite mounting public demands for its action.

The Council, like all constitutional courts, cannot escape being a political institution. Judicial independence has to operate within the framework of democratic government, which is why constitutional court judges are usually selected by some form of political process. In 2007, Taiwan’s legislature rejected four of Chen’s eight nominations, including very able candidates such as National Taiwan University professor Yeh Jun-Rong. All four were associated with Chen’s political views, and, if their nominations had been approved, Chen would have appointed all fifteen Council members, not a desirable development in a vibrant democracy. Had they been approved, would the outcome in 665 have been different and might the interpretation have diminished popular confidence in the Council?

Successfully establishing an institution to protect constitutional rights is difficult but essential in every country. Will some new generation of Chinese leaders take on the challenge?

An edited version of this text appeared in Chinese in the China Times (Taiwan) on October 29, 2009 (繁体中文),and in English, under the title “Taiwan’s constitutional court: a model for Beijing?” in the South China Morning Post (Hong Kong).

U.S.-Asia Law Institute Fellow Ms. Yu-Jie Chen contributed research to this article.