(Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use. I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.
(Pix (c) Larry Catá Backer 2012)
Part XXIII—Zhiwei Tong (童之伟) Series: There is no Constitutional Ground for Judicial Activism in China
Reviews of the academic report by Associate Professor Ling Bin at the China Law Society Youth Forum
Originally Posted on http://libertyzw.fyfz.cn/art/850790.htm December 13 2010
[The Forth China Law Society Youth Forum sponsored by China Law Society, co-hosted by Qingdao City Intermediate People’s Court and Department of Legal Information of China Law Society was hold in Qingdao, Shandong Province, December 11 2010. The author of this article was invited to review the academic report presented by Associate Professor Ling Bin of Peking University School of Law. This article is sorted out from the review speeches by the author]
Associate Professor Lin Bin presented his academic report “Non-Intervention of Justice: about the boundaries of optimal distribution of judicial functions and powers.” I highly agree with the general position of the paper. Dr. Ling's report draws on the experiences of the United States, combining with those of China he recapitalizes ten areas where justice should not intervene. Substantially Dr. Ling's idea is to advocate that the court should not process or deal with issues that justice is not destined to deal with or deal with properly, instead the court should concentrate its time and human resources on disputes that justice and well handle.
I agree with these points made by Dr. Ling: “it is often due to the over-publicized omnipresence and omnipotent ability of justice that the court encounters serious difficulties and becomes incapable.” The court should not intervene in certain cases, “non-intervention presumption” should at least be applied in ten areas, including “issues that are too large or too minuscule to be dealt by justice, issues that are too complicated or too simple, issues that are too common in practice or too unusual and issues that are too unfamiliar to the society or too old to be dealt with;” “from historical experience, justice in different countries in different time periods has to go through perpetual transformation from inactivity to activeness and then from activeness to non-intervention;” “it is not because of dogmatism that non-intervention is adopted in the rule of law in certain cases, instead, it is based on the wisdom to make the right step at the right moment accumulated through experience that such choice is made. Therefore understating the rational choice that justice makes when boundaries vary is the only way to inherit the patronages of the rule of law of various nations,” “with respect to the rule of law based on ‘good laws,’ the key is to rule well and not how much to rule. When discussing non-intervention of justice in the rule of law is, in the end, to implement the most suitable conduct of the rule of law.”
Some parts of Dr. Ling’s report are, however, questionable. The report discusses the optimization of the distribution of judicial functions and powers in China with a comparative prospective between China and United States. It seems that the background of two aspects of the report was insufficiently examined:
First of all, the constitutional status of courts in China is much lower with respect to American courts. According to the Constitution of China, the court falls under the big umbrella of the National People’s Congress system (NPC), it yields from the NPC of its own level, responsible to the NPC, supervised by the NPC and is the judicial organ subordinate to the NPC and its standing committee of the corresponding level; and according to relevant laws, the status of the court is also lower to the executive organ of the NPC of the corresponding level. Under the system of separation of three powers and checks and balance provided by the Constitution of the United States the Supreme Court is a state organ parallel to the Congress and President, systems in various states are generally similar to the federal system. Therefore the court in China cannot be compared to that of the United States.
Secondly, from the prospective of legal traditions, there are fundamental differences between the Statutory System of China and Case Law System of the United State. In the U.S, the application of the Constitution relies primarily on the Judiciary, followed by the Legislature and Executive; in China the application of the Constitution relies on the legislations made by the NPC and its standing committee, followed by the execution of executive organs represented by the State Council; nor the court or procuratorate (including both the Supreme Court and Supreme Procuratorate) have the functional power to apply the Constitution directly, they can only apply the Constitution indirectly through applications of ordinary laws. The court in the U.S has both law-making function and judicial function; its institutional functions cover a much wider and important range than that covered by the functions of the Chinese court.
Because of the insufficient attention to the above mentioned difference between the constitutional systems of China and the United States, it is unavoidable that Dr. Ling’s report faces three questionable issues:
I agree with these points made by Dr. Ling: “it is often due to the over-publicized omnipresence and omnipotent ability of justice that the court encounters serious difficulties and becomes incapable.” The court should not intervene in certain cases, “non-intervention presumption” should at least be applied in ten areas, including “issues that are too large or too minuscule to be dealt by justice, issues that are too complicated or too simple, issues that are too common in practice or too unusual and issues that are too unfamiliar to the society or too old to be dealt with;” “from historical experience, justice in different countries in different time periods has to go through perpetual transformation from inactivity to activeness and then from activeness to non-intervention;” “it is not because of dogmatism that non-intervention is adopted in the rule of law in certain cases, instead, it is based on the wisdom to make the right step at the right moment accumulated through experience that such choice is made. Therefore understating the rational choice that justice makes when boundaries vary is the only way to inherit the patronages of the rule of law of various nations,” “with respect to the rule of law based on ‘good laws,’ the key is to rule well and not how much to rule. When discussing non-intervention of justice in the rule of law is, in the end, to implement the most suitable conduct of the rule of law.”
Some parts of Dr. Ling’s report are, however, questionable. The report discusses the optimization of the distribution of judicial functions and powers in China with a comparative prospective between China and United States. It seems that the background of two aspects of the report was insufficiently examined:
First of all, the constitutional status of courts in China is much lower with respect to American courts. According to the Constitution of China, the court falls under the big umbrella of the National People’s Congress system (NPC), it yields from the NPC of its own level, responsible to the NPC, supervised by the NPC and is the judicial organ subordinate to the NPC and its standing committee of the corresponding level; and according to relevant laws, the status of the court is also lower to the executive organ of the NPC of the corresponding level. Under the system of separation of three powers and checks and balance provided by the Constitution of the United States the Supreme Court is a state organ parallel to the Congress and President, systems in various states are generally similar to the federal system. Therefore the court in China cannot be compared to that of the United States.
Secondly, from the prospective of legal traditions, there are fundamental differences between the Statutory System of China and Case Law System of the United State. In the U.S, the application of the Constitution relies primarily on the Judiciary, followed by the Legislature and Executive; in China the application of the Constitution relies on the legislations made by the NPC and its standing committee, followed by the execution of executive organs represented by the State Council; nor the court or procuratorate (including both the Supreme Court and Supreme Procuratorate) have the functional power to apply the Constitution directly, they can only apply the Constitution indirectly through applications of ordinary laws. The court in the U.S has both law-making function and judicial function; its institutional functions cover a much wider and important range than that covered by the functions of the Chinese court.
Because of the insufficient attention to the above mentioned difference between the constitutional systems of China and the United States, it is unavoidable that Dr. Ling’s report faces three questionable issues:
1. The summary of the lessons learned in the legal history of the United States (made by Dr. Ling ---- translator), may not be in line with the situation in the United States, or may not accurately reflect the mainstream tendency of legal development in the U.S.. Dred Scott v. Sandford has a very bad reputation, its ruling is a failure of the U.S Supreme Court, this is a fact, but I am afraid that this judgment cannot be considered as a case of judicial activism, thus not a failure of judicial activism. Admittedly, both Brown v. Board of Education and Roe v. Wade are considered judicial activism cases by conservative American legal scholars, but the two cases are widely confirmed by practitioners of law and the legal academia in the United States. A strong evidence that proves the weak tenability of Dr. Ling’s evaluation of cases of this type is that the American society and American Judiciary has accepted this type of cases rather than denying them. In fact, Bush v. Gore case of more than decade ago, Citizens United v. Federal Election Commission and Perry v. Schwarzenegger cases of this years, all have the ruling like the one made in Brown v. Board of Education, which inherited the tradition of following the original intentions of the makers of the Constitution started by Justice Marshall in Marbury v. Madison. This is the orthodox way in the U.S.
2. The presenter of the report has not had a clear view on the fact that the elasticity room provided by the Chinese Constitution to the court is much smaller than what is provided by the American Consecution to the court in the U.S. Under the U.S Constitution, it is natural for the justice to check the constitutionality and make laws through case rulings; instead, according to the Constitution of China, not even the Supreme People’s Court has the power to explain laws, not to mention the power to explain the Constitution, it has only the very much limited power to explain laws provided by “The Organic Law of the People’s Court.”
3. Talking about the judicial activism or restraint problems in China and United States at the same level is perhaps ignoring the incompatibility between judicial activism in Chinese laws and the Chinese Constitution. On the one hand, the general motif set by Dr. Ling is to prove that justice in China should restrain itself, but on the other hand, at least apparently he abstractly affirmed what has been said about active justice in Chinese courts, because the report stated: “ we should focus and research on the necessary boundaries of judicial behavior , in order to optimize the distribution of judicial functions and powers, to realize the real goals of ‘active justice’ and ‘justice for the people’.”
Despite some questionable parts in Dr. Ling’s report, I still maintain a strongly affirmative attitude. What am I affirming? I strongly affirm the warning and preventive attitude in the content of the report. I think, this report should further deny in general sense the possibility of judicial activism implementation in China and the expression “Active Supreme Court Justice.”
Promoting and implementing judicial activism in China are erroneous in theory and infeasible in practice, such actions will only cause disorderly activism and blind activism. I think we have enough reasons to deny judicial activism:
1. In the United States, judicial activism is a theory about the court competing with the Congress for legislative power. The book “Judicial Activism” familiar to Chinese scholars did not reveal the substantial aspect of the definition of judicial activism. Christopher Wolfe is a professor of political science at Marquette University, the definition he gave to judicial activism cannot reflect the mainstream ideas of law practitioners and legal academia in the United States. Neither the book had a thorough discussion of the function and content of judicial activism. Interested readers might want to take a look at “Black’s Law Dictionary” under the entry “Judicial Activism;” relevant entries in Professor Jethro K. Liberman (Professor of Law, New York Law School) ‘s book “A Practical Companion to the Constitution” (Random House, University of California Press, 1992) are also worth considering.
2. In Europe, judicial activism is also a theory that generalizes the fight between the Judiciary and democratically elected Parliament, with Judiciary competing for rule-making power. We cannot learn this theory of Europe, mainly because it will be useless in China, like the skills one has learned to kill dragons (as there’s no dragon to kill).
3. In the U.S and Europe, judicial activism is generally seen as an anti-democratic theory, it is a derogatory term, American judges and courts do not wish to be associated with such term. Nor Chinese courts should be associated with such term, it is too much for Chinese courts. Discussing “judicial activism” in China within European or American context, from a constitutional prospective, will be seen as a joke by insiders.
4. If courts in China really practice judicial activism, its balance of power distribution with related parties will be broken; the first thing it will do is to compete with the NPC and its standing committee for more rule- making room. Due to the existing constitutional and political status of the Supreme Court and lower level courts, they will not be able to really accomplish anything. This is not only a problem of facing the NPC. The NPC system is the key for the Chinese Communist Party to realize its leadership functions. Everybody, please have a thorough reflection on our Constitution, hope the court looks out for itself.
5. The court cannot really engage in judicial activism, but if it seeks every way possible to be "active", or move towards the direction when it has no conditions to move, then the result will only make the existing constitutional system increasingly chaotic. The report by Ling Bin did not explain thoroughly this side of the argument. His main idea is: the court has to be active but it should also be inactive in certain cases. Although our predecessors have talked about the rationale behind “not to do is to do,” it is still worthy of recognition when this idea is specifically pointed out in connection with the court. Under the current Constitution, the key to differentiate which acts should be handled by justice and which ones should mandatorily be handled by justice, is the sound judgment of those who are in charge. However, making a sound judgment is not an easy thing to do, or perhaps it is even harder for the authorities to resist against the instinctive impulse to seek achievements as political performance.
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