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A Comparative Study of Judicial Review Under Nationalist Chinese and American Constitutional Law

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A Comparative Study of Judicial Review Under Nationalist Chinese and American Constitutional Law OccAsioNAl PApERs/ REpRiNTS SERiEs 0 ~ iN CoNTEMpORARY AsiAN STudiEs NUMBER 4 -1980 (33) A COMPARATIVE STUDY OF JUDICIAL 0 REVIEW UNDER NATIONALIST -CHINESE I 0 AND AMERICAN CONSTITUTIONAL LAW 0 Jyh-pin Fa, with a Foreward by Stephen A. Saltzburg j ~ScltoolofLAw \,.)' () UNiVERSiTy · of MARylANd ~ Occasional Paper~/Reprints Series in Contemporary' Asian Studies ' General Editor: Hungdah Chiu 0 0 Acting Executive Editor: David Salem Managing Editor: Julia Fang 0 Editorial Advisory Board Professor Robert A. Scalapino, University of California at Berkeley . Professor Martin Wilbur, Columbia University Professor Gaston J. Sigur, George Washington University Professor Shao-chuan Leng, University of Virginia Professor Lawrence W. Beer, University of Cqlorado Professor James Hsiung, New York University Dr. Robert Heuser, Max-Planck-Institute for Comparative Public Law and International Law at Heidelberg Dr. Lih-wu Han, Political Science Association of the Republic of China Professor K~ P. Misra, Jawaharlal Nehru University, India Professor J. S. Prybyla, The Pennsylvania State University Professor Toshio Sawada, Sophia University, Japan Published with the cooperation of the Maryland International• Law Society. All contributions (in English onlyl and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law. 500 West Baltimore Street. Baltimore, Maryland 21201 USA. All publications in this series reflect only the views of the authors. While the editor accepts responsibility for the selection of maferials to be published. the individual author is responsible for statements of facts and expressions of opinion contained therein. Subscription is US $10.00 for 8 issues (regardless of the price of individual issues! in the United States and Canada aPd $12.00 for overseas. Check should be addressed to OPRSCAS and sent to Professor Hungdah Chiu. Price for single copy of this issue: US $3.50 TABLE OF CONTENTS FOREWORD By Stephen A. Saltzburg PREFACE I. INTRODUCTION 1 II. BAcKGROUND oF THE CHINEsE SYSTEM OF JuDICIAL REVIEW 9 A. Confucianism v. Legalism ... ... ... ...... ... .. .. .. ... .. .. .. 9 B. Confucianization of Law .............................................. 12 C. Administration of Justice ............................................ 21 D. Preference for Mediation ............................................. 23 E. Legal Reform in the Mainland .. .. ... .. ... ... .. .. .. .. .. 27 F. Legal Reform in Taiwan since 1949 . .. .. .. .. .. .. .. ... 39 III. THE PRocEss OF CoNSTITUTION-MAKING ••••••••••••••••••••••••••••• 45 IV. PRocEDURAL AsPECTS oF JuDICIAL REviEW ••••••••.•••••••••••••.• 67 A. Reasons for Establishing a Specialized Constitutional Court •••••••••••••••••••••••••••••••••••.••••••••••••••••••••••.••••••••••••.••••• 67 B. Member .......................................................................... 70 C. Jurisdiction .................................................................... 80 D. Proceeding ..................................................................... 88 v. PRACTICE OF JUDICIAL REVIEW • •• • •••.••.•• •• ••••• ••• • • •• ••• • •• • • • •• •• • . .• • 97 A. General Survey of the Output . .. .. .. ... .. .. .... .. ... .. 97 B. Selected Decisions ........................................................ 105 1. Ex Post Facto Doctrine ...... ................................... 105 2. Freedom of the Press ............................................ 114 3. Immunity of Legislative Speech ........................... 132 C. Effect of Unconstitutionality ....................................... 144 VI. CoNCLUSION •• •• • • • • . •.• • • • . • • • • • • . •••• .. • .. • . • • • •• • • •• • . • .• • • • •• .. • • . • • • . •• • . • • • . 159 BmuoGRAPHY •••••••••••.•.•••..•.••..••..•••.••••.••••.•....•••••.•••.•••.••.••..••••••••••. 169 INDEX •••••·•····••·•••••••••••·•••••••••·•••••·••••••••·••••••·•·••·•••·•·••·•··••·••••··•••·•·••• 181 INDEX TABLES Table 1. Initiation of Cases . .. .. .. .. .. .. .. .. .. .. .. .. 98 Table 2. Application Filed by Individuals, 1975 ............ 102 Table 3. Rounds of Proceedings ....................................... 104 FOREWORD When Chief Justice Marshall wrote for the United States Supreme Court in Marbury v. Madison (1803) that the judiciary had the power to declar an act of Congress unconstitutional, he phrased the issue before the Court this way: "The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest." By assuming in this statement of the question that courts have the power to review legislation in order to decide whether it actually is repugnant to the Constitution and focusing instead on whether a la.w known to be unconstitutional nevertheless could be valid law, Marshall verbally sidestepped the truly hard question: why should courts have the power to set aside statutes acts enacted by a body, the legislature, that is presumed to be as loyal and subservient to fundamental law as the courts themselves? This truly is a question whose intricacy is directly proportional to its interest. It is a question that American constitutional lawyers ponder regularly as they endeavor to explain and to criticize the role of the courts in our constitutional system. Other aspects of American judicial review - for example, review of executive action and review of the federal constitutionality of state laws are now somewhat less controversial than review of congression­ al action - but any exercise of judicial power to nullify actions of popularly elected officials still is likely to cause some concern. Judicial review, if still controversial, is so well established in the United States that we often forget how special our concept of the judicial role is. In many countries throughout the world, there is neither a written constitution nor anything resembling judicial review of the validity of laws. In other countries a written constitution exists but judicial review of legislation under the constitution is not exercised. Yet, it seems that judicial review of some sort is more common today than ever before. In some places, a special constitu­ tional court performs this function. In others a court, more like ours, with broader jurisdiction, performs the task. Whatever the approach, more courts are entrusted with authority to assess whether law is in accord with fundamental or constitutional principles. What seems evident is that judicial review is not a uniform concept, even in one country. It is only in the last half-century, for instance, that the United States Supreme Court has been so strongly identified with the protection of personal liberty. In the early days of the nation, judicial review was more important in the effort to strengthen the union against the states and to recognize federal power to promote commerce and general welfare. It is only against a background of America's relative world power and economic prosper­ ity that judicial review to protect fundamental rights and vulnerable minorities has developed. This book compares judicial review and the role of the courts in the Republic of China with American ideas about the responsibility of courts. The authors describe the way in which courts function in the Republic of China, and in necessarily condensed fashion, how this came to be. They described and explain the Constitution of the Republic Of China and trace its roots. And they carefully detail the composition and· function of the Chinese equivalent of our Supreme Court, the Council of Grand Justice of the Judicial Yuan. The work of the Chinese court for the most part has not involved protection of personal liberties. This is not surprising. For some time concern about security against outside agression and the competitive­ ness of its exports in world markets have dominated public affairs in the Republic of China. Until political and economic security are assured, it may be that no judiciary is likely to stand in the way of legislative and executive officials responsible for the security and prosperity of the nation. Judicial review that entails the power to frustrate the temporary will of lawmakers and lawenforcers may be a luxury that a country only can afford when it is strong enough that any particular frustration of majority will is not likely to jeopardize its position- politically, militarily, or economically- in the world. Judicial review is still relatively new in the Republic of China. By watching how it grows with the economic prosperity of the nation and how it is affected by developments in the relationship between the Republic of China and the People's Republic on the mainland, we may learn much about the impact that political and economic forces have on the role of the judiciary. Stephen A. Saltzburg September 10, 1980 PREFACE Following the Second World War, a conspicuous phenomenon in the legal systems of many countries has been the adoption of a system of control legislation. Judicial review, once characteristic solely of the United States, has spread to many parts of the world; as the system has spread, it has assumed a variety of forms. Particularly noteworthy is the rise of the European system, represented by West Germany and Italy; this system, in fact, is modeled after the Austrian system of 1920. By creating a special Constitutional Court, it stands in contrast to the American type in many respects. This development has made the comparative study of judicial
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