Tag Archives: China

Comment on Hong Kong: Cora Chan: When, if ever, will Hong Kong see democracy?

CoraSeventeen years ago China resumed sovereignty over Hong Kong. China promised a high degree of autonomy and separate economic, legal and social systems for Hong Kong in an international treaty, the 1984 Sino-British Joint Declaration. These promises were concretised in Hong Kong’s post-handover constitution, the Basic Law.

Hong Kong enjoys more governance powers than many other local regions in the world. However, a crucial criterion in assessing the degree of autonomy Hong Kong has is the extent to which its people can elect their own government. The past year has seen heated discussions over how the Chief Executive of Hong Kong (CE) should be returned in 2017. In the past, the CE was selected by an Election Committee that was dominated by members who were pro- Beijing and business elites, and which electoral base had never exceeded 7% of the electorate at large. Article 45 of the Basic Law provides that the CE shall be returned by election or through consultations and appointed by Beijing, the “ultimate aim” being selection of the CE “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures” (emphasis added). So the ideal system mandated by the Basic Law consists of three stages: nomination by a committee, election by the general public on candidates returned by the committee, and appointment by Beijing.

In 2007, the National People’s Congress Standing Committee (“NPCSC”) gave the green light for universal suffrage of the CE in 2017 (see the NPCSC’s 2007 Decision). This sparked off debates over what universal suffrage should look like in that year.

Constitutionally, changes to the current electoral system can only take place after the NPCSC determines that there is a need to introduce changes, and the proposed change is endorsed by two-thirds of legislative councillors in Hong Kong, the CE and the NPCSC (see the NPCSC’s 2004 Interpretation on Article 7 of Annex I). If these parties cannot agree on an electoral model, the status quo (i.e. CE elected by an unrepresentative Election Committee) will continue and universal suffrage will be deferred for another term. Nevertheless, the prospect of compromise is dim. Beijing and pan-democrats in Hong Kong (the latter controlling around one-third of the legislature) disagree on all pertinent issues. Under Article 158 of the Basic Law, the final power of interpreting such Law is vested with the NPCSC. But until the NPCSC issues a binding interpretation on Article 45 of the Basic Law – and this has not happened yet – courts and government institutions in Hong Kong are free to interpret the provision using the common law approach, subject to a duty to refer by the final court. So far there is still room for pan-democrats to dispute, within the framework of the Basic Law, Beijing’s understanding of Article 45 because the NPCSC has not yet formally issued an interpretation on this article.

The strife between Beijing and pan-democrats highlights some of the contrasting features between universal suffrage with Chinese characteristics and universal suffrage as popularly understood. Beijing emphasizes that a careful screening process by the Nomination Committee is needed to ensure that the CE is someone that “loves the country”. To the pan-democrats, this is just an excuse to bar them from running. Excluding them at the nomination phase or final appointment stage may not make much difference to the result, but sifting them out at the former may save Beijing the embarrassment of refusing to appoint someone that has won popular support. For Beijing, the composition of the Nomination Committee should be modelled upon that of the existing Election Committee. The argument goes that since the Basic Law described the latter as “broadly representative” and the same term was used in Article 45 to describe the former, the two committees should be composed according to the same principles. For pan-democrats, the Election Committee is not “broadly representative”, but even if it is, the Basic Law does not preclude the Nomination Committee from being more representative than the Election Committee. For Beijing, the threshold for nomination must be high; to be successfully nominated, a person must be able to obtain support from at least half of the members of the Nomination Committee (what Beijing terms “organisational nomination”, a concept that is not found in the Basic Law). For pan-democrats, such high threshold would unreasonably preclude people opposed to the mainstream political views in the Committee from entering the race.

For Beijing, it seems, the requirement of universal suffrage only applies to the stage when the general public votes on the list of candidates returned by the Nomination Committee and is irrelevant to the nomination stage. Indeed Beijing believes that although the Basic Law entrenches the International Covenant on Civil and Political Rights (ICCPR) through Article 39, the requirements on universal and equal suffrage under Article 25 ICCPR do not apply to Hong Kong. This is because when the U.K. extended the ICCPR to Hong Kong, it made a reservation which stated that Article 25 of the Covenant did not require the latter to establish an elected legislature and executive. However, according to the United Nations Human Rights Committee and the Hong Kong court in Lee Miu Ling v Attorney General (No 2) (1995) 5 HKPLR 181, once elections are introduced in Hong Kong, the election procedures must comply with Article 25 ICCPR. In March this year, the Centre for Comparative and Public Law of the University of Hong Kong organised a roundtable involving international experts to discuss what Article 25 ICCPR requires of nomination procedures in democratic elections. The experts laid down a set of “Guiding Principles on the Compatibility of Election Mechanisms and Methods with International Standards”, which stipulate, inter alia, that any Nomination Committee should reflect the will and equal representation of the people, the process for electing members of the Nomination Committee should be inclusive, participatory and transparent, the nomination procedures should include processes of public consultation or civil nominations through the Nomination Committee (to be explained below), and there should not be unreasonable restrictions on people’s right to stand for election and be nominated, bearing in mind the need to comply with the principles of equality and non-discrimination.

In the past few months, an issue has taken centre stage: whether Hong Kong citizens should be allowed to directly nominate candidates, effectively by-passing the Nomination Committee. According to Beijing, any such system of “civil nomination” is unconstitutional – the Nomination Committee’s power under Article 45 of the Basic Law is substantive and not merely symbolic. In contrast, a faction within the pan-democrats believes that the term “democratic procedures” in Article 45 is broad enough to encompass a procedure whereby the Nomination Committee would automatically endorse as candidates those who are able to obtain the support of a certain percentage of the general electorate, and that civil nomination is needed as a safeguard against the Chinese government manipulating the Nomination Committee.

In my view, purely as a matter of constitutional interpretation, Article 45 of the Basic Law can be interpreted to support either side in the debate on civil nomination, and it is possible to reach this conclusion through common law or Chinese principles of interpretation. If we use the common law purposive approach to interpret Article 45, it is possible to argue that this provision, when read in light of other provisions in the Basic Law such as Article 39 entrenching the ICCPR, and the repeated messages of separate systems and autonomy in the Basic Law and the Sino-British Joint Declaration, aims to guarantee the right of Hong Kong people to elect their own leader. “Democratic procedures” can therefore be read liberally to embrace a procedure that requires the Nomination Committee to endorse recommendations from the public. Yet, it is also possible to argue, as the Bar Association has done, that under such a procedure the Nomination Committee would not be acting on its own. This would violate Article 45, which envisages the Nomination Committee to be the only organ for making nominations. If we adopt Chinese principles of interpretation, the analysis is even more straightforward. From the Chinese legal system’s point of view, there is no impediment to giving a legal provision a meaning that is not apparent from the text. Socialist interpretations of law can clarify or add things to the law. An example of this is the NPCSC’s 2004 interpretation of Article 7 of Annex I of the Basic Law, which effectively rewrote the phrase “if there is a need to amend [the method for electing the CE” into “if the NPCSC determines that there is a need to amend [such method]”.

My point is simply that as a matter of legal interpretation, the debate on civil nomination can go either way. Although the contest over civil nomination has been couched in legal terms, the obstacle to introducing a system with civil nomination is not legal, but political. The key is whether Beijing has the political will to grant such a system. The political nature of the battle is obvious when one considers the NPCSC’s hovering, nuclear power of issuing an interpretation of Article 45 of the Basic Law. There is only so much room for law in constitutional law, when the final power of interpreting the constitution is vested with a Socialist dictatorship.

Hong Kong people are aware of this. The high-profile civil movement “Occupy Central with Love and Peace” sets out to level the bargaining power between Beijing and the people of Hong Kong. This venture, started by my colleague, Associate Professor of Law, Benny Tai, threatens to launch a large-scale civil disobedience movement (illegally occupying major roads in the central district of Hong Kong, which will presumably create a de-stabling factor for Hong Kong’s economy and attract international attention) in the event Beijing does not grant genuine universal suffrage to Hong Kong. Recently the movement organised an unofficial referendum in which nearly 800,000 Hong Kong people voted (amidst unprecedented hacking of the online polling system), with 91% supporting an electoral model with civil nomination, and 88% of the belief that the legislature should veto a model that fails to meet international standards, depriving electors of a real choice of candidates. On 1 July, the day commemorating the resumption of sovereignty, 500,000 people engaged in a lawful demonstration to express their wish for genuine universal suffrage. That night, student organisations launched a small-scale “test” civil disobedience movement and sat in peacefully on a central road. The police arrested more than 500 protestors, an arrest of the largest scale in unauthorised demonstrations since the handover.

The number of participants in these events is partly boosted by the Chinese government issuing a White Paper on its policy towards Hong Kong in June. The most controversial parts of the Paper are its emphasis that the Chinese government retains control over all aspects of Hong Kong, including those that have been designated as falling within Hong Kong’s autonomy, and that all administrators in Hong Kong, including judges, must be patriotic. The Paper is seen by many locals as a defeat of promises of autonomy and a trample on cherished values of judicial independence, and triggered, on top of all else that was happening in Hong Kong, a silent march of 1,800 lawyers on 27 June.

The next date to look out for is when the NPCSC makes a determination on whether there is a need to introduce changes to the election system. The Hong Kong government’s 5-month consultation on electoral reform ended in May and it is expected to request the NPCSC for a determination later this summer. The democrats warned that if the NPCSC, in deciding whether there is a need to reform the election system, incidentally imposes unfair constraints on the nomination method, they would commence acts of civil disobedience immediately. The confrontation will likely continue, if subsequently the Hong Kong government submits to the legislature a proposal for electoral reform that is unacceptable to the pan-democrats. Whether civil responses in Hong Kong are able to restage David and Goliath depends on whether China still perceives the city to be of utility, the position of business tycoons in Hong Kong, and the politics within the Chinese Communist Party. The destination of genuine universal suffrage can be as near as 2017 or as far as never. All that is clear now is that the road ahead in Hong Kong’s journey to democracy is far from clear.

 

Cora Chan is an Assistant Professor of the Faculty of Law, University of Hong Kong and the UKCLA Hong Kong Correspondent. 

(Suggested citation: C. Chan, ‘When, if ever, will Hong Kong see democracy?’  U.K. Const. L. Blog (7th July 2014) (available at http://ukconstitutionallaw.org/)).

3 Comments

Filed under China, Hong Kong

Christopher Forsyth and Nitish Upadhyaya: Crown Immunity after the End of Empire in Hong Kong and India

Nitishforsyth1Crown Immunity is a recondite branch of Public Law that seldom makes an appearance in the Law Reports but it does potentially raise grave constitutional issues. It is surely ‘fundamental to the rule of law that the Crown, like other public authorities, should bear its fair share of legal liability and be answerable for wrongs done to its subjects’(H W R Wade and C F Forsyth, Administrative Law (10th ed, OUP, 2009), 695)).  But, on the whole, those grave constitutional issues are seldom acute in the United Kingdom. This is in large measure because of the passing of the Crown Proceedings Act 1947 which puts the Crown in much the same position as that held by an ordinary employer and an ordinary litigant and the decision of the House of Lords in M v The Home Office [1994] 1 AC 377 that scotched the heresy that Ministers of the Crown shared the immunities of the Crown and so only obeyed the law as ‘a matter of grace’ but were subject to coercive remedies to secure compliance.

But this post draws attention to the fact that these grave constitutional issues do arise elsewhere. In many parts of the world Crown Immunity is part of the legacy of Empire, left behind when the British departed.   At the height of the British Empire, the Crown enjoyed sovereignty over vast swathes of the globe that were not part of the United Kingdom; in these territories, unless altered by remedial statute, there are difficulties with proceedings in the local courts against the Crown (or its successor sovereign). The Crown Proceedings Act 1947 applied only to the Crown in right of the United Kingdom, so it does not help; there has to be local legislation in the jurisdiction concerned. Many of these jurisdictions enacted remedial legislation (sometimes earlier than the UK legislation) similar to that of the Crown Proceedings Act. But not all did.

This post deals with only two jurisdictions –India and Hong Kong – in which there are difficulties over Crown Immunity. First India.  The stark truth is that there is, in India, no general legislation similar to the Crown Proceedings Act. The current Indian State enjoys the immunities of the Raj (technically the Secretary of State for India), who enjoyed the immunities of the East India Company—the entity that governed India on behalf of the Crown prior to 1858 and enjoyed Crown Immunity (often called ‘Sovereign Powers’).  It is startling to note that ‘the liability of the [Indian] Government [today] is the same as that of the East India Company before…1858’(T. S. Pradhan, ‘Immunity to sovereign functions’, National Law Institute University Bhopal, Research paper for the Constitution Commission of India (4 June 2010), p 6.

The ambit of this immunity was first outlined in P. & O. Steam Navigation Co v Secretary of State (1861) 5 Bom HCR App. 1 (P. & O. Steam Navigation) where the Court distinguished between the functions of the East India Company which were mercantile (and in respect of which the company enjoyed no immunity) and the governmental functions of the company (in respect of which it did benefit from immunity). The court held that the company (and its successor, the Secretary of State for India) was not liable for anything done in the exercise of such ‘sovereign powers’. The court defined such ‘sovereign powers’ as powers which ‘cannot be lawfully exercised except by a sovereign, or a private individual delegated by a sovereign to exercise them’. Successive judicial decisions have mistakenly taken this antiquated position as a starting point from which to analyse the liability of the Indian State for tortious acts. This has effectively left the Indian government and its agents with full immunity for such acts—a wholly unacceptable position in a modern legal system.

In the case of Kasturi Lal v State of U. P.  AIR (1965) SC 1039. (Kasturi Lal), the Supreme Court accepted and applied the distinction first adopted in P. & O. Steam Navigation—that of sovereign and non-sovereign functions. The police arrested Kasturi Lal, a partner in the appellant firm. While in custody certain gold, the property of the firm, was seized from him on suspicion that it was stolen. On his release from custody the gold was not returned to him as the Head Constable had taken it and fled to Pakistan. An action was brought by the firm against the authorities to recover the value of the lost gold but the Supreme Court held that the negligence of the officers in allowing the gold to be stolen occurred when they were carrying out duties related to the sovereign functions of the State and so the claim failed. However, it is telling that even in this case, the Supreme Court felt ‘disturbed by the thought that a citizen whose property was seized by process of law, has to be told when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State. That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature’. The adoption of this distinction to determine the liability of the authorities when they exercise ‘sovereign powers’ brings a surprising whiff of the rule of the John Company to modern India—an immunity akin to, and derived from, the unreformed Crown Immunity of nineteenth century Britain has survived into twenty first century India!

The decision in Kasturi Lal is gradually being pushed aside, in favour of rulings which hold the State to account for tortious acts. Crown Immunity is no longer applicable to public law cases lodged through writ petitions under Articles 32 and 226 of the Indian Constitution.   Further, a tort claim where inalienable constitutional rights, such at the right to life (guaranteed by Article 21) have been violated, the State cannot use immunity as a defence.  Judges have become ever more critical of the use of Crown Immunity to defend claims, with the most straightforward argument being that ‘the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail’ (State of Andhra Pradesh v Challa Ramkrishna Reddy  AIR 2000 SC 2083).

In Hong Kong, on the other hand, a Crown Proceedings Ordinance Cap 300 of 1957 was enacted  (and remains in force) to govern the liability of the Crown (in the form of the government of the colony) and, after the 1997 resumption of sovereignty, the government of the Special Administrative Region of Hong Kong. Section 3 of the Ordinance titled ‘Right to sue the Crown’ entitled a plaintiff to bring proceedings against and indeed such claims have continue under the Crown Proceedings Ordinance against the Hong Kong Government since the resumption of sovereignty.

But the Crown Proceedings Ordinance dealt only with the immunity of the Crown in Hong Kong. It left untouched the immunity of the Crown as far as the government of the UK was concerned. A suit in Hong Kong against the Crown in respect of a matter for which the UK government had responsibility could thus still be met by a plea of immunity. This did not matter much – in part because, in Hong Kong, relief against the Hong Kong Government was of much greater importance than relief against the Crown in right of the UK.  And in any event there was always the option, at least theoretically, of suing in the UK and taking advantage of the UK Crown Proceedings Act.

But what was the position after the resumption of sovereignty? Stone J had to address this question in Intraline Resources Sdn Bhd v The Owners of the Ship or Vessel ‘Hua Tian Long’  [2010] HKCFI 361; HCAJ000059/2008 (Hua Tian Long).

In Hua Tian Long the claimant alleged that the defendant owner of a floating derrick crane-barge, Guangdong Salvage Bureau, had failed to make the platform available as agreed under a Memorandum of Agreement.  The claimant was thus unable to complete various projects for which it had required usage of the crane-barge and therefore claimed damages.  The defendant, however, invoked the principle of Crown Immunity, claiming that it was part of the Ministry of Communications of the Chinese Government. Responding to the pleadings, Stone J held that ‘the short point is that in my view “crown immunity” in its true sense never was removed by the Crown Proceedings Ordinance,….. it continued to exist at common law unaffected by the Crown Proceedings Ordinance until the handover to the new sovereign power, [the People’s Republic of China], which in turn must enjoy the like crown immunity hitherto accorded to the British Crown…If the foregoing be correct, as I consider that it is, effectively that is the end of the doctrinal element of the “immunity debate”. In my view “crown immunity” subsists and thus now can be invoked as a matter of Hong Kong law’.  Furthermore, Stone J went one ‘ the Chinese Government is the metaphorical ‘Crown’ of the People’s Republic of China’.

Thus while Indian judges are moving to restrict the ambit of Crown Immunity, it appears Stone J has resurrected, or at least in view of his judgment, re-confirmed the broad scope of Crown Immunity in Hong Kong law.

 It seems that Stone J was not referred to the decision of the High Court of Calcutta in P. & O. Steam Navigation and its distinction between the mercantile and governmental functions of the East India Company. In that case, Sir Barnes Peacock CJ confirmed that ‘there is a great and clear distinction between acts done in the exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them’. In the context of Hua Tian Long, had Stone J used the reasoning of the Calcutta High Court, he may well have decided that the actions of the Guangdong Salvage Bureau were those that could be carried on by private individuals and held Crown Immunity to be inapplicable in the circumstances. This is surely how the essentially commercial dispute should have been resolved as, even if the Chinese Government is entitled in law to Crown Immunity, there is indeed a distinction between the exercise of sovereign powers on one hand, and acts which may be carried on by private individuals on the other. Instead, and most remarkably, the decision has allowed the commercial activities of the Chinese Government, nominally still communist, to avail itself of the privileges of the imperial Crown!  This is of particular importance in Hong Kong where the Chinese government has many commercial interests not all of which are publically known and which may only become known when (as in Hua Tian Long) Crown Immunity is claimed in litigation.

How is the law to be developed so that the successor sovereigns to the British Crown bear their fair share of legal liability? With the Indian Parliament unwilling to act, it has fallen to the judges in the lower courts to distinguish the decision in Kasturi Lal in order to reach a just decision for the claimants in cases where the State is clearly at fault and should be liable. Presented with the right case, it is to be hoped that the Indian Supreme Court will overrule Kasturi Lal.

Further east, the wider consequences of the decision in Hua Tian Long remain to be seen.  The P. & O. Navigation case long ago confirmed the distinction between mercantile and governmental acts of the State and would have provided Stone J with the perfect precedent to take a similar course. However, it appears that the spectre of Crown Immunity has once again reappeared and the utilisation of this doctrine may have worrying consequences for parties in commercial disputes with governmental bodies linked to the Chinese Government. Hua Tian Long is, of course, a first instance decision and it may be hoped that the Hong Kong Court of Appeal or Court of Final Appeal may take a different view and at least adopt the P. & O. Steam Navigation distinction.

But there is a difficulty with this: the conceptual confusion between sovereign immunity and Crown Immunity. There is of course a clear distinction between these two concepts: Sovereign or State Immunity is based on the principles of comity and equality between sovereign states and is a doctrine of public international law that governs inter-state relationships. It is relevant in determining the extent to which a foreign sovereign state is answerable to the local courts.  Crown Immunity on the other hand applies internally within a state and stems from the inequality between the ruling sovereign and the ruled.  Crown Immunity is about the extent to which the local or domestic sovereign is answerable to the local courts.   There is no reason why if the law of sovereign immunity is absolute, i.e. rejects the distinction between mercantile and governmental acts, that the law of Crown Immunity should reject the same distinction.

But the Hong Kong Court of Final Appeal has recently held in a controversial decision (Democratic Republic of Congo v FG Hemisphere Associates LLC Nos, 5, 6, & 7 of 2010 ) that foreign States enjoy absolute immunity from enforcement and jurisdiction in Hong Kong even in commercial disputes is thus a decision on Sovereign or State Immunity. Although China is the domestic sovereign, will the Court of Final Appeal be bold enough to hold that a different doctrine applies to it? Until it does so China will enjoy in the courts of Hong Kong the immunities of the Imperial British Crown!

Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge.

Nitish Upadhyaya is a law graduate from Robinson College, Cambridge currently working in Hong Kong.

This post is based upon ‘The Spectre of Crown Immunity after the End of Empire in Hong Kong and India” (2013) 21 Asia Pacific Law Review 77 by Christopher Forsyth and Nitish Upadhyaya.

Suggested citation: C. Forsyth and N. Upadhyaya, ‘Crown Immunity after the End of Empire in Hong Kong and India’ U.K. Const. L. Blog (2nd November 2013) (available at http://ukconstitutionallaw.org).

Leave a comment

Filed under China, Comparative law, Hong Kong, India

Report on the UK-China Public Law Conference 2013: The Rule of Law in Modern Constitutionalism

picture1On  2-6 September 2013 Renmin University Law School in Beijing, China hosted the first conference of its kind uniting public law scholars from British and Chinese Universities. Over the course of five days scholars discussed a variety of topics relating to the conference theme: The Rule of Law in Modern Constitutionalism. The conference was organised by Nick Barber (Oxford) and Jeff King (UCL) and Ruiyi Li (Nankai University) in conjunction with the UK Constitutional Law Group, Renmin University, and the British Foreign and Commonwealth Office. The other scholars in the British delegation were Tarunabh Khaitan (Oxford), Dawn Oliver (UCL), Andrew Le Sueur (Essex), Hayley Hooper (Oxford), Paul Yowell (Oxford), Aileen McHarg (Strathclyde), and Martin Loughlin (LSE), and Ewan Smith (FCO).

picture2The conference took place over four days, with Wednesday involving specially organised visits to the Supreme People’s Court (SPC) and the Administrative Division of the National People’s Congress of the People’s Republic of China (NPCPRC) for the British delegation. The sessions in the conference included Constitutional Structures (including soft law and conventions, and a comparison between structures in Britain, Europe, and Hong Kong), the Rule of Law and the Judiciary, Human Rights (including political and legal protection mechanisms, and the rule of law in the welfare state), and Administrative Law. The conference was attended by both faculty members and graduate students, and was enhanced by robust open discussion from all participants. Particular highlights of the conference included Ruiyi Li’s paper on the Qi Yuling case from 2001; which was the first case in which the Supreme People’s Court gave direct effect to the constitution in the context of the right to receive education. The decision was, however, subsequently rescinded. Paul Yowell also delivered an engaging paper on the history of the drafting of the Universal Declaration of Human Rights and the shared cultural values between east and west which underpinned it; thus challenging the oft-held perception that the UDHR is a ‘Western’ document. Cora Chan also provided insight into China’s management of its Special Administrative Regions under the policy of ‘one country, two systems’. Hong Kong is a region which retains much of the British common law system. Although the region retains a significant degree of autonomy in many spheres of life the final court of appeal must refer any questions of constitutional interpretation not to the Supreme People’s Court, but to the Standing Committee of the National People’s Congress, which is a political body controlled almost exclusively by Communist Party members.

The specially organised visits to the SPC and NPCPRC afforded a truly unique insight into China’s constitutional mechanisms.  In the Supreme People’s court the British Delegation had an audience with the Court’s President Wang Shenjun and President of the Administrative Division Zhao Danguang. China is presently considering the possibility of establishing a separate system of administrative courts (having released a white paper on judicial reform in 2012) due to criticisms of bias and Communist Party interference in ordinary local courts in relation to disputes between citizens and government agencies. Despite progress in the realm of open justice, access to court hearings remains difficult (prior application and a background check for members of the public is required before attendance), and Communist Party interference in cases remains a problem.

picture3President Wang Shenjun  recounted his own visit to the United Kingdom in 2002 where he met with former House of Lords and Supreme Court Justice Lord Phillips of Worth Matravers in London. The President also sought the opinion of the British delegation upon possible directions that the establishment of a system of Chinese Administrative Courts might take, in particular Wang Shenjun was curious about the differences between the English common law system and the civil law system of public law courts present in France and Germany.

Several lasting impressions from the experience are of general value to scholarship in constitutional law and theory. The first is perhaps will be trite to comparative constitutional scholars but nonetheless it seems to be a truism. That is: one cannot accurately or fully reflect on the merits and pitfalls of one’s own system of constitutional organisation without seeing it through another’s eyes. To this end, the contributions of the Chinese scholars and graduate students were of enormous value in providing opportunity for critical reflection on the British constitution.

picture5

picture4The less obvious and perhaps more valuable intellectual insight to be drawn from the experience is the frank illustration the experience provided of the inherent (and fluctuating) link between constitutionalism and cultural values. China is experiencing an almost indescribable and unprecedented rate of economic and cultural transition. Prior to the trip this author found it all too easy to take the merits of particular ideas or modes of constitutional organisation for granted. In this respect contributions from Chinese scholars explaining the legacy and relevance of Confucian values and the Cultural Revolution to China’s constitutional development helped to emphasise the contextual nature of both the development of constitutional law and practice, and more importantly the highly contextual nature of the appropriateness of approaches to constitutional law scholarship; in particular attaching value to certain normative perspectives on constitutionalism. This was nowhere more aptly illustrated than during the robust debate about the value and meaning of the Rule of Law between Nick Barber, Martin Loughlin, Lin Laifan, and Zhu Jingwen.

picture 6On a more personal note, I’d like to extend my sincerest thanks on behalf of the whole British delegation to Dean Han of Remnin University, Ruiyi Li, and Ewan Smith at the Foreign and Commonwealth Office. Dean Han, Ruiyi Li, and a wide circle of academic colleagues and graduate students showed extraordinary hospitality and friendship in welcoming us to both the Law School and China and ensuring that we had both a rich and memorable cultural experience over and above an invaluable academic experience.

picture 7

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford University

Leave a comment

Filed under China, Comparative law

Rogier Creemers: The Constitutionalism Debate in China

RogierOver the past few months, a heated debate about the role of the Constitution in Chinese political life has emerged. This debate comes in the wake of the 18th Party Congress and the handover of power to the fifth generation of leaders with Xi Jinping becoming General Secretary of the Party, and equally importantly, Chairman of the Party’s Central Military Commission. Before the handover, there were hopes that Xi, who was seen as more affable and less rigid than the wooden Hu Jintao, would bring political reform initiatives to a country in which social tensions are becoming rampant, were corruption is endemic, and scares about food security have led to worldwide panic buying of milk powder by Chinese citizens.

Those calling for reform, however, had to do so in cautious and circumspect terms, couched in language that would not directly contravene the Party’s core ideological pillars. A previous reform call, Charter 08, landed its drafter Liu Xiaobo both a Nobel Peace Prize and a prison sentence for subversion. Hence, the call for reform was made under the heading of “constitutional governance” (xianzheng 宪政). On New Year’s Day, the activist intellectual journal Yanhuang Chunqiu posted a New Year’s message, Constitutional Governance is the Consensus for Political Structural Reform, which claims that “Although the existing Constitution is not perfect in every way, as long as it is satisfactorily implemented, our country’s political structural reform will make a great step forward.” A few days later, the well-known outspoken newspaper Southern Weekend published an editorial, The Chinese Dream, the Dream of Constitutional Governance, which claims that “Only under constitutional governance will it be possible for the country to continue to become strong and wealthy, only under constitutional governance will it be possible for the people to become truly formidable. Only by fulfilling the dream of constitutional governance will it be possible to strive for national sovereignty abroad even better, and safeguard the freedom of the nation; will it be possible to even better strive for civil rights at home, and safeguard the people’s freedom. And the freedom of the country must, in the end, rest on the freedom of the people, it must rest on the fact that everyone may speak their hearts, and everyone may have dreams in their hearts.

Both articles were censored. In Yanhuang Chunqiu’s case, the website was taken offline for a number of days, while the Southern Weekend editorial was replaced by a more neutral text, allegedly through a decision of the Guangdong provincial censorship chief Tuo Zhen. By that time, the new leadership had already started deploying its own ideological campaign, that of the Chinese Dream of the great rejuvenation of the Chinese nation. This campaign is predicated on the notion that China is finally coming close to realizing the ideal of modernization after suffering humiliating colonial subjugation in the 19th and early 20th Century. The successes that have been reached so far are deemed to be largely due to the enlightened leadership of the Chinese Communist Party, and the ideological/theoretical system of Socialism with Chinese Characteristics.

Understanding this system is important in framing the discussion about constitutionalism. Some of its key components, while often informed by classical Chinese political concepts, clearly bear a Marxist imprint. In this discussion, the most important ones are monism, historicism and positivism. These interlinked concepts respectively refer to the idea that there is only one correct way to understand and evaluate systems in an epistemological and moral sense; the idea that history is predetermined and follows a necessary path; and the idea that the social world is underpinned by ‘laws of nature’ that can be understood, and used to manipulate society. The ultimate objective is to lead Chinese civilization towards a predetermined Utopia, which has at various terms been known as Communism, the Great Harmony, the Chinese Dream and the Harmonious Society.

This view strongly influences the Chinese concept of law in general and the Constitution in particular. As it posits that the future is predetermined and largely known, the legitimacy of rules and norms is the contribution they make to progress towards that future. Hence, they legitimize capricious and arbitrary policy decisions, as long as these can somehow be justified as “progressive”. In turn, this term is operationalized in, amongst others, cadre and official evaluation systems that measure performance in a limited, quantitative set of output indicators. Unsurprisingly, this leads actors up and down the hierarchy to behave strategically, in order to respond to the incentive structure in which they are placed, often resulting in corruption and arbitrariness.

Little room is left for rights in the Dworkinian sense, which are ‘trumps’, or entitlements to expectations of treatment that can only be denied or infringed upon with justified cause. This presupposes, however, an acceptance of the fact that often, legitimate interests in society legitimately conflict, and an equitable balance between them needs to be found. In Chinese monist political-legal system, however, such conflicts are often unmentionable, as they would seem to imply that economic exploitation still takes place, and that therefore, the Socialist project failed. Also, it would imply having to recognize that the benefits of crossing the river might not be shared by all, harming the project’s legitimacy.  Most of all, it would be beyond the pale to suggest that citizens need protection against the Party-State, as this – in the official view – only strives to serve the people. Rather, the view is that “contradictions” are caused by the fact that knowledge about society and development remains imperfect, and that these will be resolved in the end.

While the official point has been forcefully made in a number of theoretical and editorial articles in major Central journals and newspapers, the counterarguments are somewhat less clear. To a certain extent, this can be explained by the risks incurred by franc-parler. For example, the constitutional scholar Zhang Qianfan recently published an article in which he analyzed the preambles of different constitutions, concluding that it is not necessary to include references to specific persons or ideologies in a constitution. While this could be interpreted as removing references to Marx, Mao and the CCP from the Constitution, Zhang refrains from saying so directly. But there is a deeper question of thinking as well for those opposing the system. There are different levels at which dissent and protest can take place: from the individual actions of officials and cadres, past specific policies, to the institutional arrangements of the country and ending up with the fundamental philosophy that informs the structure of state and society. The official line claims that the basic philosophical foundations are correct, and therefore, so are the fundamental institutional structure and the general policies of the State. Nonetheless, circumstances change and knowledge increases, so in order to progress, specific policies must be adjusted flexibly. Any further imperfect outcome in society must therefore be the result of officials not implementing policies well, either because of corruption or because of a lack of sufficient knowledge and effort. The notion that it might be the very arbitrariness of policy (which in the public eye is often confused with corruption) that causes popular dissatisfaction is anathema.

Interestingly, a number of constitutionalist voices share a number of aspects of this official narrative, particularly where it relates to the claim to progress to an ideal society. This is, however, hard to reconcile with the increasing complexity of a modern society, where it is impossible to fully harmonize interests, values and outcomes, and it is necessary to develop channels for political negotiation and bargaining to share unavoidable harm and risk. In China, however, this point remains moot: whatever the chatter about constitutionalism, Xi’s leadership has manifested itself as strongly neo-Dengist: willing to engage in deep economic reform, but also to maintain political and social stability at all costs. Perhaps the leadership style goes even further back: a few days ago, the Standing Committee launched a rectification campaign in classic Maoist tradition, aimed at removing those Party members who are unwilling to forsake perks and privileges, but who want to toil and struggle for progress towards the Chinese Dream. But the nasty question will remain: when will the Party-State keep the promises that it made in its own Constitution?

 Dr. Rogier Creemers is a Rubicon Scholar at the Centre for Socio-Legal Studies and a Senior Fellow of St. Antony’s College, University of Oxford. He mainly researches Chinese media, communications and intellectual property law.

Suggested citation: R. Creemers ‘The Constitutionalism Debate in China’  UK Const. L. Blog (22nd June 2013) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under China, Comparative law

Nick Barber: Does China Enjoy Greater Legitimacy Than Any Western State?

Nick1I was listening to the radio a little while ago, and heard Martin Jacques talking about China.  I listened with renewed concentration.  Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes.  Much of what Jacques had to say was insightful, but one of his claims seemed surprising.  Warning his audience he was about to shock them, Jacques asserted that ‘the Chinese state enjoys greater legitimacy than any Western state’.  This is, by any standards, a courageous claim to make.  Jacques advanced three, connected, arguments to support it.  First, he drew our attention to the support expressed by China’s people for their government. In recent surveys it seems that between 80 and 95% of Chinese citizens were either relatively or extremely satisfied with central government.  Secondly, he pointed to the stunning economic success that China has enjoyed over the last thirty years, enjoying a growth rate of about 10% per year.  And this success has not just caused the rich to get richer: Jacques could also have pointed to China’s remarkable success in lifting its people out of poverty.  Allied to these claims, Jacques argued that the Chinese have a different conception of the state to that found in the West: for the Chinese, the state is viewed in terms of the family.  Under this conception of the state, the leadership stands as the head of the family, intimately connected to, and entitled to exercise authority over, the people.

Each of these three claims deserves further reflection.

Jacques’ first point, resting on statistics that quantified the satisfaction of the Chinese people with their state, may demonstrate rather less than he hopes.  In Thinking, Fast and Slow,  the psychologist Daniel Kahneman warns of a trick that our minds tend to play on us.  When faced with a difficult question we are tempted to unknowingly substitute an easier question, and answer that instead.  So, a question about the importance of preserving an animal species or, perhaps, the effectiveness of the market in the NHS, is transmuted into a question about the cuteness of the animal or our how we feel about people making money from healthcare.  Similarly, in presenting this poll as a test of legitimacy, Jacques has shifted from examining the legitimacy of the government to assessing the perception of the legitimacy of the state.  Just because people believe that a government is entitled to rule, this thought alone does not make it so.   Given the control China exercises over its media, and the absence of any real opposition to the government, a general belief in the legitimacy of the government might not be all that surprising.

Indeed, it is even possible that the questions asked by Jacques’ surveys were directed towards something other than the legitimacy of the government.  The surveys appear to have asked after people’s satisfaction with the state, or their assessment of the government’s handling of the economy.  This is a very different thing to the entitlement of the government to rule.  It is easy to imagine a person – perhaps a subject in an imperial territory – admitting that the dominating power was competent, but still challenging its right to rule.  The Romans are still Romans, no matter how well they govern.  On the other hand, a citizen might regard her government as poor, on the verge of incompetence, but still endorse its legitimacy.  Many Labour Party supporters would bitterly criticise the Coalition’s policies, but still recognise that the United Kingdom possesses a legitimate government.

This is not just a semantic quibble.  Political scientists distinguish between two forms of legitimacy: input legitimacy and output legitimacy.  Jacques has focused almost exclusively on output legitimacy in his talk.  Output legitimacy is a function of the competency of the state.  People do, or should, support the state and comply with its commands because doing so will make their community a better place to live.  Input legitimacy, in contrast, is a function of the way decisions are made.  People do, or should, support the state and comply with its commands because of the way the government has been formed and the way the commands have been produced.  Ordinarily, some form of democracy is at the heart of input legitimacy. These two forms of legitimacy are complementary and interconnected.  Perhaps one form of legitimacy is valueless without at least an element of the other.  That the people of China are satisfied with their government, coupled with the strong economic success of that country, shows that China has a plausible case to make in terms of output legitimacy.  The lack of input legitimacy may, though, still throw into question the broader entitlement of the Chinese government to rule.

Jacques’ third point – about the Chinese conception of the state as a family – might be an indirect response to this point.  In the family, the authority parents enjoy over their children, especially young children, rests on their ability to make decisions in the best interests of their child.  Parents’ right to tell their children what to do does not rest on a vote or even on consent.  Perhaps Western preconceptions of legitimacy cannot be applied in the context of China?

The difficulty with this reply is that China does have democratic structures in its Constitution.  These are just not very effective.

In a valuable recent book, Professor Qianfan Zhang explains the structures and operation of the Chinese Constitution.  The Constitution asserts that China should be governed democratically.  It sets out a bottom-up structure of democratic control.  The people elect representatives to the lowest levels of assembly at town and county levels.  These assemblies then elect deputies to sit in Local People’s Congress that, in their turn, elect deputies to sit in the Congress at the next level up.  The process continues all the way to the National People’s Congress, which is the highest representative body.  In reality, though, the Communist Party exercises control over every stage of the process: the bottom-up approach of the Constitution is, as Zhang explains, countered by a top-down system of Party control.  Party committees, controlled from the centre, are able to vet candidates standing for election.  In effect, the appointment of representatives at each level of legislature is subject to the review, or even control, of the Party committee that sits at a governmental level one stage higher than that body.  The 1982 Constitution calls for a system that starts with the citizen and works up to the NPC, with each deputy accountable to the lower body that elected her.  The constitution with a small ‘c’, in contrast, starts with power vested at the top of the Party and then devolves power down to the regions, with each deputy accountable to the higher body that selected her.

Jeff King  has written of constitutions as mission statements, as declarations of the type of polity the state wishes to be.  In China’s case there is a sharp contrast between this declaration and the realities of state power.  China’s government fails to achieve legitimacy even in the terms set by its own Constitution.  This creates a sort of constitutional cognitive dissonance: a discomfort caused by the gap between peoples’ actions and the way they think they ought to behave.  It is a discomfiture that is very evident amongst Chinese public law scholars who struggle to connect the Constitution with the actual rules that structure the state.  It is also evident in the speeches of China’s leaders, whose rhetorical exhortations sometimes seem remote from the state they have fashioned.

Trying to ground a polity largely or entirely in terms of its competency is a dangerous business.  It may prove successful whilst the economy is booming, but economic success never lasts forever.  And the stability it brings can be quite shallow.  After the defenestration of Bo Xilai  tanks were seen on the streets.  If this had occurred in London, people would have thought it was the start of a parade.  In Beijing, people thought it was the beginnings of a coup.  Chinese people’s satisfaction in the conduct of their state may be high, but their faith in their leaders, and their confidence in the stability of their country, may be less buoyant.

Nick Barber is a Fellow of Trinity College, Oxford, and, in 2012, Visiting Professor at Renmin University, Beijing. 

Suggested citation: N. W. Barber, ‘Does China Enjoy Greater Legitimacy Than Any Western State?’ UK Const. L. Blog (28th November 2012) (available at http://ukconstitutionallaw.org).

3 Comments

Filed under China, Comparative law, Human rights

Ruiyi Li: Case-law adopted by China?

On the 26th of November 2011, the Supreme People’s Court of China (SPCC) announced the first set of ‘guiding cases’: two civil law cases and two criminal cases.  This marks the establishment of the guiding cases system in China.  What is a guiding case?  A guiding case is a judgement selected by the SPCC from judgments already handed down by courts – both lower level courts and the SPCC itself.  Once the judgment has been selected by the SPCC as guiding case, the lower courts in the Chinese legal system are then required to take account of it.   This introduces something comparable to, but distinct from, the Common Law doctrine of precedent into the Chinese system, and may lead to a profound shift from previous practice.  Generally speaking, China has adopted the model of a civil law legal system, without a doctrine of precedent.  This is because, in part, the primacy of the National People’s Congress, the principle legislative body in China, is taken to exclude a doctrine of precedent.  Only the National People’s Congress can create law.  If the Courts can make law in their judgments through the interpretation of legislation, such interpretation would encroach upon the sovereignty of the NPC.  As this note will explain, the solution of the ‘guiding case’ attempts to preserve this feature of the Chinese Constitution, whilst giving some power to shape the law to the judicial branch.

Art. 2 of the Work Rules in Regard to Guiding Cases (Work Rules) provides a definition of the type of case that may be chosen by the SPCC as part of the guiding case system.  The judgment of the guiding case must be already in force, that is, it must have already been decided by a court, and the case must possesses at least one of the following features: (1) the case has received broad social attention, (2) the legislation applied in the case itself has been drafted in very broad terms, (3) the type of dispute is a paradigm, (4) the case raises difficult, complicated, or new issues, (5) or, finally, a case that does not fall within any of the former four but nevertheless merits a guiding function.

  1. Four guiding cases

 Four judgments were chosen by the SPCC in the first round of the guiding case system.

Centaline Property Agency Ltd. China. Shanghai v. Tao Dehua concerned a disputed brokerage contract arising in the dealing of second-hand properties.  This judgment held that a property sale contract is invalid if the purchaser who has committed to a brokerage contract tries to exclude the agent who organised the deal and buy direct from the seller.  The Court allowed an exception to this rule where the same housing stock information had been released by more than one agency – in this instance, the purchaser is entitled to deal with the one who offers the lowest price and best service.  The Court aimed to protect the lawful rights and interests of the brokering agency, promote the healthy development of brokering service market, maintain the dealing in good faith, encourage fair competition among brokering agencies, enhance the quality of service, and protect consumers’ lawful rights and interests.

The second case is Wu Mei v. Meishan Xicheng Paper Co., Ltd. of Sichuan Province.  It deals with legal effect of settlement agreements signed by the parties outside of the court over a disputed contract of sale.  The Court held that if the litigants have reached a settlement agreement before the judgment is delivered in the trial of second instance, the settlement agreement is binding.  If one party does not perform the settlement agreement or performs it partly, the other side can appeal to the court to enforce the judgment given in the trial of first instance.  In this way, the freedom of disposing the object in issue enjoyed by litigants has been respected, whilst those rules of abiding by the agreement reached have been emphasized and the authority of the first court’s judgment has been preserved.

No. 3 guiding case PAN Yumei and CHEN Ning, A Bribe-Accepting Case concerns corruption, expanding the offence to include some new situations: the position of civil servants who receive bribes indirectly by being registered as a co-founder of a company without contributing anything to its establishment, or who receives bribes directly but either does not act on those bribes or subsequently returns the money.  Such indirect means, or delayed honesty, does not affect the verdict of corruption.

The last decision of WANG Zhicai, An Intentional Homicide Case concerns death sentence reprieves.  In this case the defendant had murdered the victim after she refused his offer of marriage.  The defendant was initially sentenced to death by the Higher People’s Court.  But all death sentences cases must be reviewed by SPCC before execution.  After the SPCC reviewed his case, the murderer was awarded a reprieve.  Because the killing was undertaken in a moment of passion, the death penalty was not appropriate. Considering the emotion of victim’s family, SPCC also decided that para. 15 of the 8th amendment of Criminal Law is applicable in the case which requires a minimum tariff of twenty years for murder.  The SPCC explained why this case was significant.  On three occasions the SPCC cited the importance of the role of the criminal law in achieving social harmony.  The emotions of the victim’s family and other ordinary people should be considered by the court.  Whilst the death sentence should be commuted, the murderer would still be subject to severe punishment.

2. Three steps to establishing the guiding case system.

The SPCC has been preparing for the introduction of a guiding cases system for a very long time. The guiding cases system was first announced in the 2nd Five-Years Reform Outline for People’s Court (2004-2008) (2nd Reform Outline) on the 26th of October 2005.  The aim of this reform was to ensure the unified application of legislation, using a system of guiding cases to produce coherence between courts.  Proposal Number 13 of the 2nd Reform Outline says:

 “Establishing and improving the guiding cases system:  Recognising the role that guiding cases can play in unifying the application of legislation – by directing the lower courts’ operation, enriching and developing their jurisprudence and so on – the SPCC shall lay down the decisions in regard to guiding cases system, and shall determine the standard for, and the process of, cases selection, the way to release guiding cases and guiding rules and so on.”

The Work Rules was issued by the SPCC on the 26th of November 2010.  It may be seen as the second step to the establishment of the guiding cases system.  The Work Rules specify the mechanism through which the guiding cases are selected.  The SPCC is the only body with authority to determine which cases should be guiding cases and to promulgate them (Art. 1 of the Work Rules).  Based on Art. 3 of the Work Rules, a Guiding Cases Affairs Office (GCAO) has been set up, which is an office of the SPCC.  The GOAO is in charge of selecting and investigating guiding cases.  All the divisions of SPCC can recommend cases to GCAO directly, but other bodies can also suggest cases to the GCAO.  The Higher People’s Courts (HPC) and the Liberation Army Military Court (LAMC) can recommend cases to GCAO after HPC or LAMC’s judicial committee discusses their significance.  The Intermediate People’s Court (IPC) and Basic-level People’s Court (BPC) only can recommend cases to GCAO indirectly via referral through their superior courts.   Individuals may recommend any case which they think should be guiding case to the Court which delivered that case.  After selection by GCAO, the GCAO then reports its opinions on the merits of the case to the Judicial Committee of SPCC which will finally decide which one should be guiding case.

The third step toward the new system was taken by the SPCC by issuing an order to lower courts on 20th of December 2011.  This order made two points.  The first part seeks to ensure that all the courts accurately understand the guiding spirits, the ratio, of the four cases.  This part sets out the four cases and specifies the guidance provided by each case.  The second part requires that the lower courts should bring the guiding cases into play, setting out the duties of the lower courts in the guiding case system.  In particular, the Supreme Court limits the capacity of the Higher People’s Court to promulgate guiding cases.  By referring to the guiding cases system, the HPC may release some cases to guide its lower courts, but may not use ‘guiding cases’ or similar phrases to avoid confusing the cases announced by HPC with cases announced by SPCC.  This measure introduces a limited form of something like a hierarchy of judicial precedent into the system.  Both the SPCC and HPC have some power to pick cases that influence lower courts, but the decisions of the SPCC are given higher legal status than those of the HPC.  Following this order, the guiding cases system has been established in China

3. The nature of guiding case

The guiding cases system established in China is different from the Common Law understanding of precedent.  Guiding case and precedent are different, not only in their expression but also in their nature.  Art. 7 of the Work Rules provides that all courts should refer to guiding cases when they adjudicate similar cases – but  this is the only provision that concerns the effect of guiding cases.  Guiding cases must be referred to by the lower court, but they are not, in themselves, authoritative.  In other words, the ratio decidendi of guiding cases cannot be the legal ground of the lower court’s judgment, but it can be cited as a reason for explaining the judgment.  The possible legal bases of judgment are not expanded: the text of the Codes is still the only binding legal authority.  The judgment of guiding case is more like an interpretation of specific provisions, through which the higher courts clarify vague provisions and fill in legal loopholes.

The differences between the guiding case system and precedent are rooted in the constitutional settlement contained in the Constitution of China.  The National People’s Congress (NPC) enjoys complete sovereignty.  Courts in China have no power to review primary legislation or secondary legislation, let alone the power to change or modify legislation.  Thus, under the Constitution of China it is impossible for the judges to make law, whilst law-making is the essence of the Common Law tradition.  Guiding cases system is a judicial reform, but any reform must still be accord with this constitutional settlement.  For this reason, the SPCC created a guiding case system instead of precedent which, crucially, does not formally empower the SPCC to change or develop the law.  This constitutional concern might be another reason why the SPCC avoided using the sensitive word precedent in setting out the new system.

4. Challenges of the new system

The new system attempts to secure the advantages of both the Common Law and civilian systems.  The guiding cases system may bring some benefits to China’s legal system, perhaps by enhancing the faith of the masses in the judiciary, but it is a radical departure for the judiciary in China.  The first challenge is how the lower courts will use the guiding cases.  Some commentators are worried that the judges may try the cases mechanically.  There is no detailed guideline of how to determine which guiding cases to follow and precisely what significance these cases should be given, a lack of guidance which increases the practical difficulties for a judiciary that has been trained in the context of civil law.  Normally judgments handed down by Chinese courts are very brief, and this is also true of the judgments of the four guiding cases.  Thus, there is actually not much content in the judgments for the lower courts to referred to.

The selection of the guiding cases has also been criticized.  Some cases that are more typical and more significant than the four handed down have not been selected to be guiding cases.  The HPCs recommend 20 cases in total to the SPCC, but only four were selected.  This demonstrates that the SPCC is being very cautious in the beginning.  Furthermore, the guiding cases system will not extend to interpretations of the Chinese Constitution.  The Constitution of China only can be interpreted by the Standing Committee of NPC, the legislature, and cannot be adjudicated on by the judges.  Therefore, there are no judicial decisions on constitutional law in China.

Finally, there is a tension inherent in the new system.  As analyzed previously, law-making by judges is constitutionally impossible.  It might be argued that the judges are only interpreting the legislation in the judgments – but it is impossible to avoid creation when judges interpret legislation.  The creative aspect of interpretation may be translated into a familiar word: law-making.  Under the surface of the guiding case system is a potential challenge to the constitutional settlement.  To avoid this happening, judges may write judgments more rigidly than before, for example adopting the approach of rigid Originalism to interpret the legislation.  But if the interpretation very mechanical how will the guiding cases succeed in play a guiding role?

Ruiyi Li is a post-doctoral researcher at the Law School of Tsinghua University, China.

1 Comment

Filed under China, Comparative law