Asia1. General picture
Despite politically unstable constitutional systems in Asian countries, the institution of constitutional/judicial review has been or is a feature of the systems of the following countries: Bangladesh, Brunei, China, Hong Kong, India, Indonesia, Japan, Laos, Malaysia, Mongolia, Nepal, North Korea, Pakistan, Papua New Guinea, the Philippines, Singapore, South Korea, Sri Lanka, Taiwan, Thailand and Vietnam.
The constitutional systems of the above countries were influenced by various foreign legal systems. The Soviet model influenced China, Laos, North Korea and Vietnam. Certain countries reflect the influence of the American system (e.g. India, Japan, Papua New Guinea). Individual legal systems contain elements of the German, Swiss and French systems (e.g. Japan, South Korea, Taiwan, Thailand), and in some systems, the elements of the Dutch system (indonesia, Sri Lanka). The greatest contribution of the American system to the development of legal systems in Asian countries is, however, evident in the adoption of the principle of the independence of the judiciary in many of these systems, as relating to the constitutional review of statutes and other legal measures. The constitutional review function is most developed in India, Japan, the Philippines and in South Korea. The development of individual systems was also influenced by the Indian system; under its effect constitutional review developed in Malaysia, Singapore and in Sri Lanka.
Asian countries include the following main models of constitutional review:
The Constitution of 4 January, 1972, was temporarily suspended in 1974 because a State of Emergency was declared. This Constitution was created following such models as the Magna Carta of 1215, the Petition of Rights of 1628 and the Bill of Rights, as well as the American Constitution, but in the form of a written Constitution. It established a cataiog of constitutional rights. A diffuse constitutional review was introduced following the American model. The Constitution was essentially amended on 15 August, 1975. This constitutional amendment introduced the independence of the judiciary and two courts as the highest State courts were established: the Supreme Court and the High Court. The Supreme Court has the role of Appeal Court in relationship to the High Court. However, the High Court has original power to exercise constitutional review following the American model: i.e. mandamus, prohibition, quo warranto, certiorari, habeas corpus. The same order was reintroduced by the Constitution of 10 October, 1991.
The Constitution of 1959 with its amendments (which is still in force) introduced the principle of the supremacy of the Constitution.
The constitutional review body is the Interpretation Tribunal, which also performs a consultative function for the Head of State (the sultan). Court decisions are issued in written form, are published in the Official Gazette, and are final and binding on all State bodies. The Court is composed of the president and two members appointed by the Head of State. The Court President may be a person who has held a high judicial office or who has been a judge for the last ten years in any part of the British Commonwealth (Article 86 of the Constitution).
Under the Constitution of 21 September, 1993, the Constitutional Council has a duty to safeguard respect for the Constitution, to interpret the Constitution, and the laws passed by the Assembly (Article 117). The Constitutional Council has the right to examine and decide on contested cases involving the election of assembly members.
The Constitutional Council is composed of nine members with nine-year mandates (Article 118). 1/3 of the members of the Council is replaced every three years. 3 members are appointed by the King, 3 members by the Assembly and 3 others by the Supreme Council of the Magistracy. The President is elected by the members of the Constitutional Council. He/she has a deciding vote in case of a deadlock. Council members are elected from among individuals with degrees in Law, Administration, Diplomacy or Economics and who have considerable professional experience (Article 119). The office of Council member is incompatible with that of a member of the Government, member of the Assembly, President or Vice-President of a political party, or President or Vice-President of a trade-union or sitting judges.
The King, the Prime Minister, the President of the Assembly, or 1/10 of the Assembly members may forward draft bills to the Constitutional Council before their promulgation (Article 121). The Assembly Rules of Procedure and various organisational statutes must be forwarded to the Constitutional Council before their promulgation. The Constitutional Council decides within no more than thirty days whether the statutes and the Internal Rules of Procedure are constitutional.
After a statute is promulgated, the King, the Prime Minister, the President of the Assembly, 1/10 of the Assembly members or a court, may request that the Constitutional Council examine the Constitutionality of that statute (Article 122). Citizens have the right to appeal against the constitutionality of statutes through their representatives or the President of the Assembly.
Provisions in any article ruled by the Constitutional Council as unconstitutional may not be promulgated or implemented (Article 123). Council decision are final.
The King consults with the Constitutional Council on all proposals to amend the Constitution (Article 124).
An organic statute specifies the organisation and operation of the Constitutional Council (Article 125).
The Chinese legal system in force has not adopted the judicial review of constitutionality. The current body exercising constitutional review is the National People's Congress and its Standing Committee. The National People's Congress is the highest body of State authority and as such it is empowered to decide on the most important State matters. According to Chinese legal theory, the establishment of a special constitutional review body would be in conflict with the system of "democratic centralism and the integration of the decision making process". Chinese legal theory notes many failings of the western systems of constitutional review where such review is exercised by a judicial body. They note that courts do not have review power as long as statutes and other regulations prejudice the rights of citizens and require citizens to lodge an application before a court. Another failing Chinese theorists note is the situation in those western systems in which the Constitutional Court can not abrogate a statute (an active role), but merely issue a decision that such a statute not be implemented (a passive role). In addition, they claim that in western systems it is difficult to find a completely independent constitutional review body.
The mentioned review of constitutionality was introduced by the Chinese Constitution of 1954 as well as by the Constitution of 1978 (but the Constitution of 1975 did not specify which State body is empowered to exercise such review). The new Chinese Constitution regulates the matter more precisely because it determines explicitly that both bodies, the National People's Congress as well as its Standing Committee are empowered to exercise the review of constitutionality. When the Congress is in session (once a year) it is not possible to also discuss constitutional matters, however such matters should be followed continuously. Such a role is performed by the Standing Committee, which is a permanent committee and meets every two months. The committee works under the supervision of the National People's Congress. The activities of the Standing Committee are supported by some special working bodies, e.g. the National Council, the Judicial Council, the Financial and Economic Council, etc. (whose responsibilities are divided concerning particular fields of activities). Their work is regulated by the National People's Congress Basic Act; they study the constitutionality and legality of statutes and other regulations of central, local and autonomous authorities. Their reports are presented before the Standing Committee. The Councils operate following the directives of the Standing Committee and/or the National People's Congress. In addition, all other State bodies, public organisations and citizens are obliged by statute to inform these Councils of eventual cases of unconstitutionality or illegality. However, these Councils are not empowered to decide a matter, but they may only submit proposals and commentaries in the form of reports to the Congress or the Standing Committee. The working committees also study draft statutes and other regulations for the Standing Committee and the Congress. In such a manner a certain form of the preventative review of constitutionality and legality has been exercised. Legal theory has stated that there certainly also exists real violations of the Constitution and statutes in the form of unconstitutional and illegal activities which are impossible to follow.
Chinese legal theory emphasizes that the western system of the review of constitutionality and legality exercised by one specialized body is not acceptable for their system of democratic centralism and for the structure of the Chinese State. Despite this official statement, there are some proposals to establish a special body under the supervision of the National People's Congress specialised only in the review of constitutionality and legality. Such a body may be called the Constitutional Council of the National People's Congress. It would be elected by the National People's Congress and composed of 50% representatives and 50% legal advisers (of the appropriate age, qualification, and experience etc.). The powers of the Constitutional Council would be as follows:
Until 1 July, 1997 the constitutional review existed in Hong Kong as an evaluation of the conformity of ordinances with local constitutional acts; in such a framework the then local Legislature was limited concerning its legislative activities.
Hong Kong had a written Constitution based on two acts of the British Queen:
- the Letters Patent of 5 April, 1843;The texts of both documents were valid from 14 February, 1917, and were amended by later amendments and changes. Since 1 July, 1997 onwards the basic constitutional act of Hong Kong has been the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. Following the new legal order it is expected that the institution of constitutional review will be implemented in the same form on the basis of the mentioned constitutional act, i.e. the evaluation of local ordinances with the Basic Law.
- the Royal Instructions of 6 April, 1843.
Generally speaking, the American diffuse system of judicial review is in force, which means that all courts may deal with such matters, with the Supreme Court providing an appropriate supervisory role. The Supreme Court of Hong Kong in current form dates from 1976. It operates in senates composed of three or five judges. The Supreme Court includes its component parts: the High Court and the Court of Appeals. Constitutional review is of great importance, primarily from the point of view of limiting the competencies of the Legislature. Delegated legislation (local ordinances) must not be in conflict with either basic acts.
The legal protection of constitutional rights is guaranteed by the following proceedings: habeas corpus, mandamus, prohibition and certiorari.
In general, India adopted the American system of diffuse judicial review, which means that such review is exercised by all courts, however, the Supreme Court, as well as some other high courts, are empowered to decide in several special proceedings on human rights protection, e.g. habeas corpus, mandamus and certioari.
Under the first system introduced by the Basic Constitutional Act in 1949, the Supreme Court was exclusively empowered to carry out constitutional review. The system in force, based in particular on Constitutional Amendment No. 42 from 1976, as well as on Constdutional Amendments No. 43 and 44 from 1977 and 1978, empowers the Supreme Court and all the highest courts in the country to exercise judicial review in different forms of proceedings (e.g. habeascorpus etc.). However, in accordance with the constitutional system in force, the powers of the Indian Supreme Court are limited. It is exclusively empowered to exercise the constitutional review of central statutes. There is also a quorum required for the unconstitutionality of a statute to be declared, ie. no less than 7 judges or no less than two thirds of Court members.
The forms of human rights protection proceedings in the jurisdiction of the Supreme Court are listed in Article 32 of the Indian Constitution (adopted following the American model): habeas corpus, mandamus, prohibition, certiorari, quo-warranto. As adopted from English law, in India the last remedy is a decision of the Supreme Court.
In addition, the Indian
system also features the constitutional review of legislation following
the American model: the courts are authorized to declare null and void
acts issued by the Legislature and the Executive which are determined to
be unconstitutional. However, the Indian system of constitutional review
differs from the American: in India such review is not based on judicial
dogma as in the USA, but constitutional review is explicitly determined
by a written Constitution (Article 13 - basic rights protection; Articles
32, 131, 131a, 132, 132a, 133, 134, 135, 136, 137 and Article 226 of the
Constitution).
Furthermore, the system in force is described as a system containing elements
of the American system of judicial supremacy as well as elements of the
English system of parliamentary supremacy.
The first Constitution dated from 1945, and the second one from 1950. Subsequently a new Constitution was adopted in 1955, but in July 1959 the 1945 Constitution was adopted again.
The Constitution in force is based on the following principles: the recognition of constitutional rights, legality concerning all statutes in all their possible forms, the independence of the judiciary.
Concerning constitutional review, the Indonesian Supreme Court only has the power to interpret statutes, but not to review them in the sense of an American judicial review. However, the Indonesian Supreme Court is empowered to exercise a certain preventative review concerning cases relating to the organisation of the Government (the review of draft statutes and other regulations). The courts are independent and free when exercising their judicial function. The Supreme Court has exclusive cassatory jurisdiction concerning all cases. Indonesia does not have any constitutional council (as in France) nor any constitutional court (of the European type). The system in force is a certain mixed European- Common Law system.
Habeas corpus proceedings were introduced in December 1981 by the new Criminal Code.
Under the Constitution of 1947, which was created under American influence, the Japanese system of constitutional review differs substantially from the American diffuse system. Para. 1 and 2 of Article 76 of the Constitution determine that constitutional review is concentrated within the Supreme Court. In addition, under Article 81 of the Constitution, the Supreme Court is empowered to carry out the constitutional review of any statute, order, executive regulation or administrative act. All the courts, the Supreme Court at the top, may determine the constitutionality of laws, orders, regulations or official acts only when the determination of constitutionality is required in the course of making a ruling in concrete cases. They do not have the power to determine the constitutionality of laws, orders, regulations or official acts which are not related to concrete cases. Such characteristics are similar to the European model of constitutional review. The Japanese system also has a particular form of the popular complaint, which is, however, limited to a dispute of the validity of elections (the so-called people's action-minshu sosho or objective action-kyakkensosho). However, it differs from the European system because the proceedings entail the decision making process in concreto (concerning a concrete case) under Article 76 of the Constitution; but at the same time Article 81 of the Constitution grants to the Supreme Court the authority of the court of last instance. On the other hand, the Supreme Court is not empowered to exercise the abstract review of norms because it does not have an appropriate legal basis in the Constitution.
The determination of unconstitutionality in Japanese system (as in the American system) has the following two forms:
Japanese Supreme Court judges are appointed by the Government. In addition, There is a particularity that Supreme Court judges may be recalled by electors within a general electoral procedure in the House of Commons. Up to the present, such proceedings have not led to a recall in practice.
The first Constitution was adopted on 31 August, 1957 (the Federation of Malaysia Agreement). Diffuse constitutional review was possible even before independence (carried out by all ordinary courts as well as the highest courts and the Supreme Court). However, the influence of the American system was only indirect. The Constitution in force (subsequently introduced as the Constitution of Malaysia of 16 September 1963, amended in 1992, 1993, and 1994) explicitly declares the principle of the supremacy of the Constitution (Article 4).
At present constitutional review is regulated separately by a written constitutional act. The subject of such a review can be any executive regulation, and under certain conditions the constitutional review of statutes is also possible. In addition, the courts also have the function of interpreting the Constitution.
The conditions for being appointed a judge of a higher court are as follows: citizenship and ten years of practice as an attorney at law or judicial experience in the public administration. Judges are independent. Concerning their number, a directive declares that any court must be composed of no less than 5 judges (for the Supreme Court of Malaysia 12 judges are determined, for Borneo 8 judges; however the Parliament can change this number; so for the Supreme Court of Malaysia, the Parliament determined in practice 15 judges). The judges are appointed by the Parliament following their proposal by the Government. The maximum age limit for appointment is 65 years.
The Supreme Court (the Federal Court) has original jurisdiction to carry out constitutional review (Articles 128 to 130). With the introduction of constitutional review, Malaysian case-law has been absorbing American constitutional case-law; however, in the past, their case-law was more influenced by the English or Indian systems. The Federal Court may also exercise the constitutional review of statutes issued by the legislature: in such situations, the Court is explicitly empowered to exercise the constitutional review of such statutes. In addition, the court is also explicitly empowered to adjudicate jurisdictional disputes between the Federation and its constituent entities. Concerning constitutional disputes relating to other kinds of legislation, other (ordinary) courts are empowered to initiate such proceedings by requesting such before the Federal Court (the "concrete review").
It is possible to initiate habeas corpus proceedings before the High Court.
A real diffuse review
was introduced by the constitutional amendment of 1981.
The new Mongolian Constitution was adopted on 12 February, 1992.
This Constitution introduced the Constitutional Court as an independent body with exclusive power to carry out constitutional review - Undsen Huuliin Tsets (Articles 64 to 67 of the Constitution). The Court is composed of nine members appointed for six years. They are appointed by the Parliament: three by itself, three on the proposal of the Head of State, and three on the proposal of the Supreme Court. The members of Tsets elect the President for three years from among themselves; one re-election is possible. The dismissal of a judge of the Constitutional Court prior to the expiration of their term of office is possible as determined by Para. 4 of Article 65 of the Constitution if a judge violates statute. Such a judge is dismissed by the Parliament following the decision of the Tsets and the body which proposed that the judge be elected.
Proceedings before
the Tsets may be requested by the following petitioners (Para. 1 of Article
66 of the Constitution): the Parliament, the Supreme Court and the
Public Prosecutor. It is not clearly defined by the Constitution
if the proceedings can be initiated by an individual petitioner. However,
following the list of Tsets powers, it is possible to state that
this body deals also with the constitutional complaints of citizens. It
is foreseen that a Tsets Act will regulate this matter in detail.
The Tsets is empowered to adjudicate jurisdictional disputes between
different State bodies. It is only empowered to issue an opinion, which
then has to be finally approved by the Parliament; but in some cases the
decision of the Tsets can be final (Para. 2 of Article 66). Furthermore,
the Tsets is empowered to decide finally on the constitutionality
of regulations issued by the Parliament, the President of the Republic
or by the Government. The Tsets also decides on the constitutionality
of referendums as well as on the constitutionality of presidential and
parliamentary elections. In addition, the Tsets deals with the impeachment
of the Head of State, the President of the Parliament as well as the Prime
Minister. The Tsets also decides on the dismissal of representatives;
the result of such proceedings may only be an opinion, the final decision
has to be issued by the Parliament.
The Constitution in force was adopted in December 1981 and is based on the Constitutional Amendments of 25 January, 1967, 12 December, 1975 and of 15 December, 1980.
The right to legal remedies for the protection of human rights before the Supreme Court is regulated by Article 16 in connection with Article 71 of the Constitution.
The Supreme Court is composed of the President and a limited number of judges determined by statute, but not more than six (Article 68 of the Constitution). The Court has statutory autonomy: it may issue its own internal rules. The Court President is appointed by the King following consultations with the highest State officials (the raj sabha, similar to the State Council); other judges are appointed by the King following consultation with the Court President. Judges are appointed for ten years, one reappointment is possible for a term of office as determined by the King himself (Article 69). The maximum age limit for judicial office is 65 years, the minimum is 45 years. Other conditions are as follows: candidates must be lawyers; have no less than five years of recent judicial experience; and no less than seven years’ experience in government service or as an attorney at law. The dismissal of a judge of the Constitutional Court prior to the expiration of their term of office is possible on the request of the affected judge or as a consequence of inappropriate professional performance.
The Court has the following powers:
The Constitution of 9 November, 1990, reintroduced the Supreme Court as the highest court in the judicial hierarchy (Article 86). Judges may hold office until they attain the age of sixty-five. The term of office of the Chief Justice is seven years from the date of appointment (Article 87). Any Nepali citizen may file a petition in the Court to have any statute or any part thereof declared void on the grounds of inconsistency with the Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by the Constitution or on any other grounds. Furthermore, extraordinary power rests with the Supreme Court to declare that statute as void either ab intio or from the date of its decision if it appears that the statute in question is inconsistent with the Constitution (Article 88).
In addition, the Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including habeas corpus, mandamus, certiorari, prohibition and quo warrants.
The first Constitution was adopted on 8 September, 1948, the current Constitution was adopted on 27 December, 1972, and revised on 9 April, 1992.
A certain form of constitutional review fails under the jurisdiction of:
The first Constitution, adopted in 1956 and amended in March 1962, was followed by the first democratic Constitution after the establishment of the State, adopted in 1973 (amended by Amendment No. 2 on 16 October, 1979, as well as by Presidential OrderNo. 1 on 27 May, 1980), which included constitutional rights guarantees. It also determined the jurisdiction of the Supreme Court for particular forms of the constitutional review of statutes, both preventative and repressive. Furthermore, habeas corpus proceedings were introduced.
The Provisional Constftution Order of 24 March, 1981, granted the President of the State the right to amend the Constitution, which resulted in the suspension of the Constitution in 1973. This entailed a termination of the independent judiciary (Articles 175 to 212 of the Constitution of 1973) and the developed judicial review system exercised by the Supreme and High Court concerning human rights protection (which was guaranteed by Articles 8 to 28 of the Constitution of 1973). In the meantime, the Constitution was amended by Amendment No. 4 of 1975 and by Amendment No. 5 of 1976. Both amendments limited the jurisdiction of higher courts in the field of human rights protection, which had been introduced by the Constitution of 1973. Following such tendencies, the executive branch ignored directions issued by the then Supreme Court in 1977 concerning conditions for the reestablishment of the system of legality. Under the Constitution of 1973, Pakistan also had habeas corpus proceedings, which were finally abrogated by an Act in 1981.
The first Constitutions dated from 1935 and from 1973. The Constitution of 1935 first introduced constitutional review (the Supreme Court and/or all ordinary courts - the American system of diffuse review). The existing habeas corpus proceedings were suspended from 1973 to 1986.
The second Constitution of 1973 (amended in 1981) adopted the same system.
Under the Constitution of 15 October, 1986, the Supreme Court is empowered to perform constitutional review (item 2 of Para. 4 of Article 8 of the Constitution). Diffuse proceedings were adopted following the American model, which means that all ordinary courts are obliged to protect human rights and freedoms (sentence 2 of Para. 1 of Article 8 of the Constitution). The courts instituted a number of standards concerning the constitutional review as well as the appropriate conditions for such a review, e.g.:
Members of the Supreme Court must be citizens of the Philippines of no less than 40 years of age and with no less than 15 years of legal experience. The office of.judge is incompatible with any other quasi-judicial or administrative office. Judges of the Supreme Court are appointed by the President of the Republic.
Dissenting or concurring opinions are welcomed, but must be supported.
The first Constitution of the independent State was adopted on 16 September, 1963 (revised in 1992, amended in 1993, 1994, 1995).
It is characteristic of Singapore that the country does not have a single constitutional text, but rather that three texts are still in force:
Singapore introduced the American system of diffuse constitutional/judicial review, but the American principle of stare decisis is less implemented in practice. However, in the Constitution of Singapore, the American system is in use only indirectly because of the many adopted elements of the Malaysian and Indian Constitutions. In general, the case-law, and primarily the constitutional case-law, is closer to British conservativism than American activism.
The highest body carrying out constitutional review is the Supreme Court. Singapore also has habeas corpus proceedings and mandamus, prohibition, quo warranto and certiorari. The practice of Singapore courts is influenced not so much by American jurisprudence, as by the English, Malaysian, and mainly the Indian Supreme Courts. Such a situation is a consequence of their similar constitutional systems, in the framework of which, Singapore courts have tried to adapt foreign jurisprudence to their concrete circumstances.
Since its founding South Korea has survived six major State structure changes and nine constitutional changes. The first Constitution was adopted on 17 July, 1948, later amended in July 1952, November 1954, July 1960, November 1960, November 1962, October 1969, December 1972, October 1980 and in October 1987. Constitutional review was introduced by the first Constitution (during the First Republic from 1948 to 1960), however, constitutional review in a proper sense following the German model, was actually introduced by the so-called Constitutionof the Second Republic (1960-1961). The Third Republic (1962-1972) adopted the American system. of constitutional review, which was exercised by the Korean Supreme Court. The Fourth Republic (1972-1980) as well as the Fifth Republic survived a period of regression concerning constitutional review. Only a constitutional commission was active in that period because the principle of constitutional review was not compatible with the then ruling military regime. By the special Declaration of 29 June, 1987, democracy was reestablished and the principle of the separation of powers was introduced: the legislature, the executive as well as the judicial branch. This was an appropriate basis for the introduction of constitutional review, which was reestablished following the German model.
The Constitution of the Sixth Republic regulated the Constitutional Court (heonbeop jaepanso) in Chapter VI by Articles 111 to 113. The position and work were regulated in detail by Constitutional Court Act No. 4017 of 5 August, 1988, which came in to force on 1 September, 1988.
The Constitutional Court is composed of nine members. All members are appointed by the President of the Republic for six years. Members may be reappointed; three of the Court members are proposed by the Parliament, the other three by the President of the Supreme Court. The President of the Constitutional Court is appointed by the President of the Republic on the basis of the previous approval of the Parliament. The heads of the legislative, executive and judicial branches are associated members of the Constitutional Court on the basis of their office. Members of the Constitutional Court are appointed from among candidates who are no less than 40 years old, have no less than 15 years of legal experience practicing law (as judges, prosecutors, attorneys at law, lawyers), or who have held a high office in a public enterprise or who have been a professor of law. The upper age limit is fixed at 65 for Court members and 70 years for the Court President. The independence of Constitutional Court Judges is insured by three factors: their irremovability, except if they receive a sentence for a criminal offence; their political neutrality, which means that Constitutional Court Judges may not be members of any political party; their incompatibility which means that the office of Constitutional Court Judge is not compatible with any parliamentary office, membership in any local assembly, or the position of employee, administrative clerk or adviser in any special interest group. In practice only six judges are permanent. The others hold honorary offices. They are mainly professors of public law.
The Constitutional Court has its own administrative services and a body which carries out research in the field of constitutional review and which prepares draft decisions. Concerning its status as a constitutional institution, the Constitutional Court has its own independent budget. Funds are granted to the Court from the State budget on the basis of statute. The Constitutional Court also has administrative autonomy concerning its internal rules, proceedings and administration.
The powers of the Constitutional Court are divided into the five following areas:
The constitutional review of statutes is regulated by Article 107 of the Constitution, the petitioners are ordinary courts. The Korean Constitutional Court features only the concrete review of statutes and the abstract review. Such reviews also existed in the period of the Second Republic. In the period of the Sixth Republic the abstract review was not practiced, however, as a certain form of compensation, the individual constitutional complaint was introduced. Korean constitutional review applies to statutes issued by the Parliament as well as acts of the Head of State having the force of statute.
Under Article 65 of the Constitution, impeachment proceedings may be initiated against the highest State officers due to a violation of the Constitution: e.g. against the Head of State, the Prime Minister, members of the Government, judges, Constitutional Court Judges, the central electoral commission, and members of the Office of Financial Inspection.
Under Article 68 of the Constitutional Court Act of 1988, following a violation of constitutional rights by a public authority body, citizens may lodge a constitutional complaint before the Constitutional Court. A complaint is a subsidiary legal remedy for individuals, whose introduction was influenced by the Swiss, German and Austrian experiences. The object of such a complaint may be any act of State and focal authorities. All acts of the legislative and executive branch are included. However, it is necessary, before lodging a complaint, to exhaust all possible legal remedies. The judgments of ordinary courts are excluded from the constitutional complaint; however, the Supreme Court is empowered to carry out their review.
The review of the constitutionality of political party activities is determined in Subpara. 4 of Article 8 of the Constitution; such activities which violate the democratic order may be disputed.
The adjudication of jurisdictional disputes between public authority bodies is regulated by Article 61 of the Constitutional Court Act of 1988. There are three kinds of jurisdictional disputes:
Constitutional Court decisions are binding on all State bodies.
The Constitutional Court was introduced by the Constitution of May 1972 (Articles 54 and 55 of the Constitution). The Constitutional Court was empowered to carry out the constitutional review of legislation. It also was able to exercise the preventative review of legislation following special proceedings. In addition, the constitutional review also included ceitioari and mandamus proceedings.
The Constitution of 1972 was repealed and a new Constitution was adopted in February 1978 (Amended on 20 November, 1978, 26 February, 1979, 27 August, 1982, 25 February, 1983 , 8 August, 1983, 4 October, 1983, 6 March, 1984, 24 August, 1984, 6 August, 1986, 17 February, 1987, 14 September, 1987, 14 November, 1987, 24 May, 1988 and 17 December, 1988). By the mentioned Constitution, the constitutional review jurisdiction of the Supreme Court was introduced (Article 118). The Supreme Court exercises:
The constitutional basis is the Constitution of the Chinese Republic of Taiwan (Zhunghua minguo xian-fa) of 1 January, 1947.
In Taiwan constitutional review is exercised by the Assembly of Supreme Judges of the Supreme Court, with special regard to the interpretation of the Constitution (Sifa-yuan da-fa-guan hui-yi). The system also includes the dissenting or concurring opinions of judges (butongyi-jian-shu). The jurisprudence is published in a special collection (sifa-yuan da-fa-guan hui-yijieshi-huibian), together with the dissenting and concurring opinions of judges added to the appropriate decision or interpretation.
The interpretation of norms has a long tradition in the Chinese legal system, as it derives from ancient Chinese history. The national doctrine as an interpretative standard based on legal philosophy, has an even higher reputation and authority than the regulation itself. In modern Chinese constitutional history the interpretative function has been held by different institutions (e.g., the Supreme Court in Beijing established on 7 December, 1906, the Supreme Court in Nanjing established on 25 October, 1927, as well as the Judicial Office established on 20 October, 1928). Provisions concerning the interpretative function of the judiciary were included in only a few Constitutions, e.g., the Constitution of 1 May, 1914, which introduced a special consultative court for deciding cases of suspect implementation of the Constitution by the President of State. The work of this body was regulated by special statute. Under the Constitution of the Republic of China of 10 October, 1923, constitutional review was exercised by members of both chambers of the Parliament. The draft Constitution of 1 June, 1931, empowered the central executive Party Committee to carry out constitutional review, however, under the draft Constitution of 5 May, 1936, this function was assigned to the Judicial Office.
In Taiwan the Constitution of 1 January, 1947, as the Constitution of the Republic of China is still in force. Under Articles 78 and 173 of this Consthution, the Judicial Office is empowered to interpret the Constitution, as well as statutes and executive regulations. Under Article 79 of the Constitution, the Judicial Office appoints a list of high judges to carry out this function. They are appointed on the proposal of the President of State with the consent of the Supervisory Office. The activities of the Judicial Office are regulated by the Assembly of High Judges Act of 21 July, 1958. On 3 October, 1958, the Act on the Implementation of the Assembly of High Judges Act was issued.
Under the regulation in force the mentioned body is composed of 17 high judges. They are appointed for nine years by the President of State with the consent of the Supervisory Office. This is not an ordinary but a special court. Under Para. 3 of Article 4 of the Act, the only legitimate petitioners are the central or local authority irrespective of the concrete case which the petitioner has been dealing with. This is different than in the USA or Japan, where a concrete case before the court is a precondition for any constitutional review and where the system of abstract review was not adopted. When merely a doubt exists concerning the implementation of the Constitution or concerning the conformity of statutes or executive regulations with the Constitution, the petitioner may request an "interpretation" from the Judicial Office. The Judicial Office has exclusive jurisdiction to exercise constitutional review (which results from the influence of the European model of constitutional review). The ordinary courts (unlike the American system) are not empowered to exercise constitutional review; they can petition for concrete reviews (concerning the constitutionality of a norm in a concrete.case which has been dealt with by such court). The system does not include an ex officio abstract review. Beside the abstract review of norms, the Judicial Office is empowered to issue official interpretations of statutes and executive regulations, and to decide on the request of a citizen affected by any decision concerning their constitutional rights (item 2 of Article 41 of the Act). This is a certain kind of constitutional complaint, which has failed to be used in practice, because many constitutional rights were suspended by statutes due to States of Emergency. In addition, the Judicial Office is empowered to decide on the impeachment to a Minister and the highest State officials (Articles 97 to 99 of the Constitution). The Judicial Office is also empowered to adjudicate jurisdictional disputes between the highest State bodies. When adjudicating such cases, the Judicial Office has to limit its interpretation to the Constitution - a border which may not be crossed by a political interpretation). In practice decisions issued by the Judicial Office resulting in the annulment of unconstitutional statutes are rare. Even following such decisions, the empowered legislature has not reacted by issuing new legislation. Such situations show that political bodies are not always prepared to accept or implement the decisions issued by the Judicial Office. An additional reason for such a relationship with political bodies is also the fact that the Assembly of High Judges Act did not regulate the effects of decisions issued by the Judicial Office.
However, the system of Taiwan includes some elements of the American system:
The first Constftution was adopted on 27 June, 1932, followed by many constitutional amendments.
The subsequent Constitution was adopted in 1978 (the Constitution of the Kingdom of Thailand B.E.2521), and amended by Amendment B.E.2528 (of 1985) and Amendment B.E.2532 (of 1989). The Constitutional Court was regulated in Chapter X (Articles 184 to 193). The court was composed of the President of the Parliament, the President of the Supreme Court, the General Public Prosecutor and four judges appointed by the Parliament from among qualified candidates. The office of the President of the Constitutional Court was exercised by the President of the Parliament. lncompatibilities were determined by Article 185 of the Constitution: A member of the Constitutional Court was not able to be a senator, a member of a representative chamber, a member of a local assembly, a local administrator, a permanently paid employee, an employee of a local authority or an employee of a State enterprise. A member of the Constitutional Court enjoyed certain privileges as determined by statute (Article 186). The office of a member of the Constitutional Court could terminate in the following situations (Article 188): death, resignation, acceptance of another office which is incompatible with the office of Constitutional Court Judge, or a sentence of imprisonment. The Constitutional Court was empowered to carry out the preventative review of draft statutes (Article 190 of the Constitution) on the request of the Parliament or the Prime Minister. In addition, the Constitutional Court exercised the concrete review of norms on the request of an ordinary court (Article 191 of the Constitution). The Constitutional Court also adjudicated jurisdictional disputes between the Supreme Court and other courts, as well as disputes between other courts (Article 179 of the Constitution). The decisions issued by the Constitutional Court were final and were published in the Official Gazette (Article 192 of the Constitution).
The Constitution in force was adopted on 11 October, 1997. The Constitutional Court is regulated by Articles 255 to 270. The Court consists of the President and fourteen judges appointed by the King following the proposals of the Senate and the judges of the Supreme Court, judges of the Supreme Administrative Court, qualified lawyers, as well as qualified political scientists (Article 255). The judges elect one from among themselves to be the President of the Court. Special qualifications for the mentioned candidates and their incompatibilities are defined by Articles 256 and 258.
The President and the judges hold their office for nine years from the date of their appointment by the King and they hold office for only one term (Article 259). The outgoing Court members remain in office to per-form their duties until the newly appointed President and judges of the Court take office. In addition, the Court members vacate office upon: death, reaching seventy years of age, resignation, being disqualified, committing a violation, being sentenced by a judgment to imprisonment, etc. (Article 260). The Court has the following powers (Articles 263 to 266):
Under the former Constitution of the Republic of South Vietnam of 24 October, 1956, amended in 1960, the Constitutional Court was introduced by Articles 85 to 88. The Court was empowered to decide on the constitutionality of statutes, decrees having the force of statute, administrative regulations, and to exercise the concrete review of norms (as requested by ordinary courts in concrete cases). Decisions on the unconstitutionality of statutes had an erga omnes effect, they were published in the Official Gazette. Similar to South Korea, the amended Constitution of South Vietnam of 1 April, 1967, granted the function of constitutional review to the Supreme Court (Articles 76 to 83 of the new Constitution). This Court was called the Alta Cotte de Justicia. It was empowered to exercise the constitutional review of statutes, decrees having the force of statute, other decrees, ministerial orders and other regulations issued by administrative bodies (Para. 1 of Article 91 of the Constitution).
The former North Vietnam adopted its first Constitution in November 1945. The second Constitution was adopted on 31 December, 1959, the third in July 1976, and a further draft constitutional text was created in December 1980. Under the North Vietnam Constitution of 1959, the power to exercise the preventative review of draft statutes was held by the Standing Committee and the National Committee of the National Assembly. The power to interpret the Constitution was held by the State Council. Under Article 105 of the Constitution, the Supreme People's Supervisory Body was introduced, which had to supervise the implementation of statutes by State bodies and citizens.
The Constitutionof the Socialist Republic of Vietnam of 15 April, 1992, introduced the parliamentary review of constitutionality. The National Assembly Standing Committee has the following duties and powers:
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