Judicial review in greater China : competences and activity in four apex courts

Abstract

This study is the first comprehensive study that examines and compares the judicial review competences and activity in four apex courts in Greater China. The four apex courts are the Supreme People’s Court in China (SPC), the Taiwan Constitutional Courts (TCC), the Court of Final Appeal of Hong Kong (CFA), and the Court of Final Appeal of Macau (Tribunal de Última Instância de Macau) (TUI). The four jurisdictions of Greater China are lined up at different points on one political spectrum. At the authoritarian end of the spectrum is China, at the democratic end is Taiwan, and Hong Kong and Macau are hybrid regimes in the middle. According to the current comparative constitutional law theories, it is reasonable to hypothesise that among the four apex courts, the TCC is the most active and assertive in judicial review; by contrast, i the SPC is the least active and intrusive in judicial review. The CFA’s and the TUI’s assertiveness and intrusiveness of judicial review are at a moderate level. This study deploys a comparative framework comprising three indicators for assessing the court’s judicial review competences and activity: jurisdiction of judicial review, standards of judicial review, and intensity of judicial review. It finds that the TCC and the CFA have broader competences of judicial review and are more active and intrusive in practice; by contrast, the SPC and the TUI have narrower competences of judicial review (de jure or de facto) and are more timid and deferential. The TCC has a high level of judicial review activeness and intrusiveness, while the SPC exhibits a low level of activity, as the existing theories assert. However, deviating from the hypothesis based on the current theories, judicial review in Hong Kong is closer to what is expected in a democratic regime and Macau is closer to the other side. This finding demonstrates that judicial review in hybrid regimes appears indeterminate in the sense that they may incline towards the democratic or authoritarian ends of the spectrum. This study systematically compares the judicial review jurisdiction of the four apex courts and analyses all of their judicial review decisions delivered between 1999 and 2019. It provides fundamental baseline data for evaluating judicial review in Greater China. The findings of this study have implications for further reflection on the evolution of judicial review in hybrid regimes.