Taiwan's constitutional court: a model for Beijing?
Did the Chinese government's recent refusal to allow Shanghai writer Li Jianhong to return to the mainland violate the Chinese constitution's human rights guarantees?
There is no effective way to enforce constitutional rights on the mainland. The Standing Committee of the National People's Congress has the 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. Mainland courts, by contrast, have sometimes been eager to enforce constitutional rights and are bombarded with requests from rights-conscious citizens. Yet they are prohibited from responding.
Some mainland law reformers favour establishing an independent constitutional court, similar to the widely influential German model, but Communist Party leaders reject judicial independence at any level.
Can contemporary Chinese political culture sustain a constitutional court? The best evidence is Taiwan, whose long-standing Council of Grand Justices serves as a constitutional court. During the decades of Kuomintang dictatorship, the council was mere window dressing for supposedly 'Free China'. But, in the last generation, as Taiwan developed a true democracy, the council made major contributions to the political system, rule of law and human rights.
During the past two years, for example, its interpretations stimulated the government to cease jailing 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 change of judges.
Moreover, 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 15 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.
Ten of the present group were nominated by 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.
The council, like all constitutional courts, cannot escape being a political institution. Judicial independence has to operate within the framework of democratic government, so constitutional court judges are usually selected by some form of political process. In 2007, Taiwan's legislature rejected four of Chen's eight nominations. All four were associated with Chen's political views, and, had their nominations been approved, Chen would have appointed all 15 members, not a desirable development in a vibrant democracy.
Successfully establishing an institution to protect constitutional rights is difficult but essential in every country. Will a new generation of mainland leaders take on the challenge?
Professor Jerome A. Cohen is co-director of NYU School of Law's US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. Institute Fellow Yu-Jie Chen contributed research. See also www.usasialaw.org