Tag Archives: constitutionalism

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)

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Colm O’Cinneide: Equality: A Constitutional Principle?

In 1994, Jeffrey Jowell published a paper in that year’s volume of Current Legal Problems entitled ‘Is Equality a Constitutional Principle?’ ((1994) 7 Current Legal Problems 1). The question mark in the title was significant. It indicated that the status of equality in UK public law was very much open to question. Seventeen years on, it is worth revisiting this issue. Can equality now be described as a ‘constitutional principle’? If so, what legal weight is attached to the idea of equality? Does UK public law provide effective protection against inequality, in particular discrimination based on ‘suspect grounds’ such as race or sex?

It is clear that equality constitutes a core value of the UK constitutional order, just as it is for every other democratic state. As Baroness Hale pithily put it in Ghaidan v Godin-Mendoza [2004] UKHL 30, [132], ‘democracy is founded on the principle that each individual has equal value’. The rule of law is based on a similar assumption that individuals should enjoy equality of status. The entire constitutional structure of the UK is thus predicated on respect for the formal equality of citizens, even if women and ethnic, religious and other minorities have in practice been subject to serious discrimination.

However, despite its central importance within the UK’s constitutional scheme of values, equality has been accorded what is at best an uncertain and ambiguous status in common law adjudication. For decades, it was unclear whether discriminatory behaviour by public authorities could constitute grounds for successful judicial review. Furthermore, courts often gave a narrow interpretation to anti-discrimination legislation, on the basis that it carved out exceptions to established common law principles such as freedom of contract and association.

Nevertheless, increased social acceptance of the need for strong legal protection against discrimination began to shift attitudes, and public law doctrine began to evolve in response. Jowell’s 1994 article argued that it was possible to read a series of judicial review decisions dating back to Kruse v Johnson [1898] 2 QB 91 as establishing the existence of a ‘common law principle of equality’ which constituted part of the wider public law doctrine of rationality and prohibited unequal treatment based on ‘distinctions which were not properly justified’ or which ‘ultimately [force] the citizen to relinquish her or his sense of equal worth’. Subsequent judicial dicta gave some qualified support to this argument: see for example Lord Hoffmann’s comments in Matadeen v Pointu [1999] 1 AC 98 at [8]. In Gurung v Ministry of Defence [2002] EWHC 2463 (Admin), McCombe J. concluded that unjustifiable distinctions based on racial or ethnic distinctions would be ‘irrational and inconsistent with the principle of equality that is the cornerstone of our law’ and held that the exclusion of Gurkha soldiers from the scheme of compensation payments awarded to former Japanese prisoners of war was irrational. Blake J. in R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin) similarly was of the view that this ‘common law principle [of equality] is an important instrument whereby it can be determined whether a discretionary public law decision is rational’.

However, the status and exact content of this equality principle remains uncertain. Lord Hoffmann in Matadeen expressed concern about its ‘banality’, while it remains unclear what if anything it adds to the existing case-law on irrationality. It appears as if decisions based on clearly discriminatory criteria will fall foul of rationality review. Beyond that, it seems to add little to existing public law controls on the behaviour of public authorities. Jowell’s argument that the equality principle could be extended to cover situations where a denial of dignity, respect or ‘equal worth’ was at issue appears not to have been taken up by the courts.

The status of equality as a common law principle thus remains qualified at best. However, the gap this has left in public law regulation has to a large extent been filled by legislation. The Equality Act 2010 in codifying a complex set of anti-discrimination enactments dated back to 1964 prohibits public authorities discriminating in the performance of their public functions, unless specifically authorised to do so by primary legislation. This is backed up by the requirements of the EU equality directives and the jurisprudence of the European Court of Justice, which obviously take precedence over UK primary legislation within their field of application.

Furthermore, the 2010 Act also imposes a general positive duty on public authorities to give ‘due regard’ to the need to eliminate discrimination and promote equality of opportunity in how they perform their functions. This duty has been interpreted by the courts as essentially procedural in nature, but has had some effect in cases such as R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin) in steering how public authorities engage with issues of equality and discrimination.

Furthermore, Article 14 of the ECHR as incorporated into UK law by the Human Rights Act 1998 prohibits public authorities discriminating against individuals ‘in the enjoyment of their Convention rights’. This is a famously circumscribed right: it only comes into play when where the facts in question fall within the ‘ambit’ of one or more of the other ECHR rights. Furthermore, interesting differences in approach appear to exist between how the UK courts and the European Court of Human Rights apply Article 14. UK courts have tended to adopt a narrow interpretation of what comes within the ‘ambit’ of other Convention rights and apply a light touch review in Article 14 cases except where ‘suspect’ grounds of discrimination such as race, sex and sexual orientation are at issue: the key decision in this respect remains that of the House of Lords in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173. In contrast, the Strasbourg Court has adopted a wider approach to the ‘ambit’ question and also engages in a more interventionist form of review: in particular, it is more willing to apply Article 14 to a wider range of status-based discrimination. The difference can be striking, as for example illustrated by the recent decision in Clift v UK, Application no. 7205/07, Decision of 13 July 2010 where the Strasbourg Court adopted a very different approach to that of the House of Lords in the same case.

Nevertheless, despite its inherent limitations and these contrasting judicial approaches, Article 14 has come to serve as a general legal guarantee of equal treatment. If the UK were to sign and ratify Protocol 12 to the Convention, it would incorporate a freestanding equality guarantee similar to the US Equal Protection Clause or Article 3 of the German Basic Law into its legal system. This would widen protection against discrimination still further: however, for now, it remains unclear as to what this would add to the existing requirements of Article 14 taken together with domestic and EU anti-discrimination legislation.

Individuals are therefore protected against discrimination in UK law through a combination of overlapping legislative, human rights and common law standards. Added together, they provide a set of legal guarantees of equal treatment which is broadly comparable in outline to that offered in other European and North American jurisdictions. However, the protection offered under many of these legal provisions remains patchy or uncertain. Furthermore, where this protection is best developed, it is usually the result of legislative intervention or the jurisprudence of the European courts. The ‘home-grown’ common law standards remain relatively underdeveloped. As such, it may be premature to speak of equality as constituting a well-established ‘constitutional principle’: rather, it is better to describe it as an important democratic value that is protected by a complex web of overlapping European and domestic legal standards, but whose scope and content remain very much open to debate.

Colm O’Cinneide is a Reader in Law at University College London.  

 

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Stuart Lakin: I’m Afraid That There’s Just No Escaping it: Public lawyers Must Also Be Legal And Political Theorists.

Many of the public lawyers who visit this blog will have been fed on a very strict diet during their public law studies.   For some, just about every meal will have consisted of Dicey’s theory of Parliamentary sovereignty and the ultra vires theory of judicial review (with the odd acidic mouthful of some heretical challenges to those theories); for others (the lucky ones) those same base ingredients might occasionally have been seasoned with a sprinkling of Jennings, Wade and even Blackstone.    Public law – much like land law or contract law – was served up as a body of reasonably clear and well-ordered rules to be ‘read and inwardly digested’.  (There ends the over-stretched gastronomic metaphor).

No doubt I exaggerate, but the public law scholarship in universities and journals today certainly seems to have moved a long way from the rather arid scholarship of yesteryear.   The dominant themes are now human rights, democracy, dialogue, deference, pluralism, constitutionalism, republicanism and so on.  Dicey et al have of course not been forgotten, but their work must now seen against this backdrop.     To put this point differently, Dicey’s theory is no longer the unquestionable orthodoxy in the public law discourse; it is just one (contentious) theory among many about how we should understand the British constitution.

I want to use this short paper to say something about the significance of the shift in public law (by which I mean constitutional and administrative law) thinking just described.     My title gives the game away.   My argument is that the public lawyer – whether judge, lawyer, academic or student – must now be be a fully signed-up legal and political (and perhaps even moral) theorist.    It is no longer an option – in fact it really never was an option – to say “oh, I don’t do theory” or “I only do doctrinal public law”.     Whether we like it or not, every view we hold about public law presupposes a theory about the nature or point of law and political authority.   The modern public law discourse demands that we spell out our different theoretical commitments.

Let me first explain my argument in a fairly abstract and general way.   I’ll then work through a few prominent areas of public law in order to illustrate my point.

Public lawyers are interested in questions about the relationship between the state and the individual (and the relationship between different branches of the state).    As lawyers, our focus tends to be on courts.   We ask whether courts do or should give effect, say, to the intentions of Parliament and/or common law principles and/or constitutional rights/principles and/or general principles or morality, efficiency, diplomacy or whatever.    Very often we disagree deeply about the answer to this type of question.    Two theorists might offer radically different interpretations of the same judgment/statute or set of judgments/statutes.   Indeed, this is standard fare of judges and practising lawyers.

On the surface, these types of disagreements are nothing more than the lawyer’s bag of tricks: a range of strategies for securing the desired result in a legal dispute; worse still, they are seen as abstract, conceptual disagreements about what judges really do.   But dig a bit deeper and one finds a complete philosophy of law and the state buried beneath these different positions.   Let’s take a short example.   A theorist who contends that judges should give effect to constitutional rights/principles might be committed (whether explicitly or implicitly) to a variety of different legal and political theories.   They might hold, the extreme natural law view that law is identical to the principles of ideal justice, and that the state may only exercise power in accordance with those principles; or they may hold a more mainstream natural law theory that positive law should aspire to, and be evaluated against, certain fundamental goods/principles, and that the state exists to further such goods/principles; or they may support a ‘soft’ version of legal positivism that moral content may be incorporated into positive law, and that the state exists to promote co-ordination and certainty; or they may support a ‘hard’ version of legal positivism that judges may have a legal duty to apply moral principles, and that the state functions to provide authoritative guidance to individuals.

Whichever theory one adopts – and however one understands that theory – there is no escaping the fact that some such theory must underpin our views on public law (and every other area of law for that matter).     In that case, a full defence of our public law views must involve a defence of our preferred theoretical position against other theoretical positions.    At this point, the public lawyer might have to confront an additional layer of philosophical complexity.    As soon as we start talking about one theory being better than another, or a public lawyer preferring one theory to another, there is bound to be a loud chorus of disapproval from the moral subjectivists among us (“there is no right answer to questions about law and the constitution; it’s all about personal opinion” or “what gives you the right to say that your constitutional theory is better than mine?”)    Suffice it so say for present purposes that the subjectivists may be correct (if being ‘correct‘ is permitted!), but their view is not ‘correct’ by default.   Subjectivists, like objectivists, have to offer a positive defence of their theoretical view of truth – along with a positive defence of their substantive views about public law.

I do hope that I haven’t managed to put anyone off public law with the above.   My aim, it should be emphasised, is not to convert law degrees into philosophy degrees, or law journals into philosophy journals.   It is the more modest aim to get judges, lawyers, academics and students thinking more directly about the theorists and theories that shape their views about public law.    If nothing else, a more philosophically enriched public law world is a more interesting world.  If I have managed to carry any of you with me to this far, then it may help to offer a few illustrations of the (inextricable) links between public law, legal theory and political theory.

Parliamentary sovereignty (PS)

Is Parliament sovereign?    It obviously isn’t enough to answer “yes, because Dicey said so”.    What types of theories count in favour of, and against the sovereignty doctrine?   Some public lawyers seem to derive PS from the work of John Austin and Hans Kelsen: there must be an ultimate source of law at the apex of the legal system.   Other public lawyers argue that PS is the Hartian ‘rule of recognition’ in the UK: it is the standard that most officials accept.  Others might argue that Parliament is the Hobbesean Leviathan.   Others argue that PS is false because Austin, Kelsen and Hart were all wrong.   They were wrong a) because the powers of Parliament must be justified by a range of legal rights and principles; or b) because Parliament is just one of a plurality of different – and equally authoritative – sources of law.

Is Parliament sovereign?   It depends…

The Rule of Law (RoL)

What does the RoL mean?  Is the RoL a formal or substantive principle?    It isn’t sufficient to opt for a the latter conception on the (spurious) basis that substantive theorists champion human rights where formal theorists sanction lawful tyranny.    The overwhelming majority of RoL theorists of all persuasions believe that individuals have certain moral rights.  The RoL debate is about a) whether some or all of those rights are legal rights; and b) whether or when judges are under a duty to give effect to those legal/moral rights.    That takes us into jurisprudential debates about the function of law (and the role of judges).     If it is argued that the point of law is to enable co-ordination, certainty, predictability and protected expectations, then it follows that laws needs to be readily identifiable, accessible, clear and so forth (as formal theorists maintain).   If, on the other hand, one argues that the point of law is, say, to create the conditions of equal treatment, then it follows that law needs to be infused with principles of fairness and justice (as substantive theorists maintain).      Public lawyers need to nail their colours to one or other mast, and explain why they have done so (or they might just deny that there are two masts!).

What does the RoL mean?  Is the RoL a formal or substantive principle?  It depends…

Judicial Deference

Do judges defer to the opinion of officials (on the grounds, say, of institutional expertise or democratic legitimacy) in public law adjudication?      Most theorists would agree that there must be a division of labour between different branches of government.   The deference debate concerns whether that division of labour is governed by law or by an autonomous extra-legal doctrine of deference.   In other words, when a judge gives special weight to the view of a minister or other official, is the judge giving effect to a legal duty, or is the judge disregarding the law in favour of a competing value (say, of institutional comity?)     These questions take us once again into jurisprudential debates about the point of law and the role of judges.   If it is argued that there are correct answers to most or all questions of law, and that judges are ordinarily under duty to give effect to the law, then the idea of deference is nothing more than the set of legal principles that determine the powers of institutions (a legal principle of the separation of powers if you like).   If, on the other hand, it is thought that it is a contingent matter whether judges have a duty to give effect to the law (as opposed to some other value), then there may well be space for an autonomous , extra-legal, doctrine of judicial deference.

Do judges defer to the opinion of officials (on the grounds of, say, institutional expertise or democratic legitimacy) in public law adjudication?   It depends…

Some Closing Thoughts

I shall not try to extend, repeat or summarise my argument above.   Instead, I’ll just recommend a couple of articles that make my argument far better than I have made it myself.    First, the famous article by Lon Fuller (Fuller, Lon L. (1949) “The Case of the Speluncean Explorers” 62:4 Harvard Law Review, pp. 616-45).  For those of you who are unfamiliar with this article, it offers a very engaging and witty account of how different judges conceive of law and adjudication differently.   More, recently, I would recommend Paul Craig’s excellent article ‘Public law, political theory and legal theory’ [2000] PL 211-39 at 217-222.   Craig suggests that theoretical arguments have sometimes been eclipsed by descriptive arguments in the past.   He suggests that public law should emphatically be about the former type of argument.

Finally, I recommend that you all read the complete works of Kant, Dworkin, Raz, Hart, Fuller, Finnis and all the other greats before you open another public law judgment!!!

Stuart Lakin is a Lecturer in Law at the University of Reading

 

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Perfect Paper: the Search for Constitutionalism in Thailand 4th May 2011

The UK Constitutional Law Group in association with London Metropolitan University is holding a panel discussion event
Wednesday 4th May 2011 at 6pm
London Metropolitan University (City Campus) 16 Goulston Street, London E1 7TP
(click here for a map)

Anyone interested welcome RSVP by 15 April: email J.Hannah@londonmet.ac.uk.

The discussion will be chaired by Mr Justice Bean with contributions from Professor Peter Leyland, Professor Andrew Harding and Professor Duncan McCargo. The event marks the publication of Leyland and Harding’s The Constitutional System of Thailand: A Contextual Analysis. This study assesses the attempt to establish a modern system of democratic government in Thailand against the background of Thai politics and culture. Since 1932, when it became a constitutional monarchy, Thailand has been through 18 constitutions with repeated fluctuations between military rule and elected government. The book is highly topical since it appears at a time of considerable uncertainty over the nation’s political and constitutional direction and it also coincides with an election year. The event also celebrates the “Constitutional Systems of the World” series by Hart Publishing. A reception follows.

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