CONSTITUTIONALISM AND JUDICIAL POWER IN CHINA
Edited by Stéphanie Balme
The end of the 20th century witnessed a significant trend of constitutionalization in many parts of the world. Preceding or following a wave of democratization that met with strongly varying degrees of success, the former Soviet bloc countries in particular quickly discarded their socialist conception of law. The constitutionalist trend in these budding democracies was accompanied by two other phenomena: the constitutionalization of politics in old democracies and the promotion of the rule of law by the international community. In line with their ongoing research into the conditions of the emergence of the rule of law (through the technical modernization of public power) in China, which may (or may not) be followed by a transition to constitutionalism, and possibly the growth of a constitutional democracy, Stéphanie Balme and Pasquale Pasquino organized the biggest international conference ever held in France on Constitutionalism and judicial power in China today on 12-13 December 2005. While this is a recurrent subject in Western democracies, it is, in China’s case, precursory but essential. The meeting brought together participants of diverse intellectual and cultural backgrounds: Chinese, American and French political historians (such as Yves Chevrier, Pierre-Etienne Will and Xiaohong-Planes), sociologists (He Xin, Tong Zhiwei, Hou Meng,
Fu Hualing), legal theorists (M. Dowdle and R. Peerenboom, Zhu Suli, D. Sabbagh, C. Chaigne, Ji Weidong, Yu Xingzhong, etc.), legal practitioners involved in European judicial debates (such as Judge Antoine Garapon) as well as two prominent magistrates on the French Constitutional Council: Pierre Joxe and Olivier Dutheillet de Lamothe. The conference was sponsored by Paris Institute of Political Studies (Sciences Po, its scientific and international affairs departments), CNRS (French National Research Center), the French ministry of Foreign Affairs through its various consulates and embassies and some local Hong Kong universities. In 2006, the conference papers will be published and seminars comparing European constitutional developments with Chinese contemporary ones are scheduled in Beijing and Shanghai.
The conference started from a first hypothesis that the rhetoric on the rule of law is not restricted in China to a ritual formula because, beyond its obvious legitimizing effects, it produces new realities and systemic effects on the level of procedures, institutions and people. Secondly, China proves to be engaged on a rather traditional path, as constitutionalism following the establishment of some forms of legal governance and then the birth of the rule of law is the rule but not the exception. What may be more specific in the Chinese case would be the setting up of a judicial review or constitutional adjudication system without the existence of institutionalized political pluralism. So-called cultural specificities are pale arguments against its own historical developments. The conference revealed that both judicial and constitutional cooperation between Europe and China is urgently necessary. Although Sino-American cooperation is obviously productive and often efficient, this somehow exclusive dialogue also produces its own limits. For example, the difficulty of the American donors and authorities to conceive reforms in China with and from its current political reality, i.e. the dominance of one (communist) party rule; as well as the incompatibility and wild modernity gaps between the two judicial and constitutional systems tend to impose the argument that it might be wiser to reject what is then perceived as the western model. Thus, supposedly active cooperation tend also to be an obstacle for further, more creative programs. As for Europe, it not only benefits from a different tradition, partly reinvented on the basis of the American sister tradition, but also provides a set of plural, and different, traditions. It is interesting to compare the political and constitutional history of France and Europe with China’s, as in both cases, the so-called supremacy of the parliament or national sovereignty embodied in the legislative power – as opposed to judicial power – has long
Stéphanie Balme – Constitutionalism and judicial power in China – January 2006 http://www.ceri-sciences-po.org 2
being dominant. Moreover, a strong unitary, over-centralized state remains the political reference, not to mention the long tradition of socialism in France and most of contemporary European countries, including the former communist bloc. The fact also remains that the development of the rule of law in Europe was marked by three forms of government control, which proved to be three decisive and irreversible victories. These are the monitoring of the legality of administrative (and governmental) action, constitutional adjudication and the professionalisation of legal actors. These dimensions lie precisely at the heart of contemporary developments in the political and judicial system in China.
Stéphanie Balme – Constitutionalism and judicial power in China – January 2006 http://www.ceri-sciences-po.org
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