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| Author: | Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies |
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October 29, 2009
South China Morning Post
Did the Chinese government's recent refusal to allow Shanghai writer Li Jianhong to return to the mainland violate the Chinese constitution's human rights guarantees?
There is no effective way to enforce constitutional rights on the mainland. The Standing Committee of the National People's Congress has the power to do so but, although it has interpreted Hong Kong's Basic Law and prepared to handle constitutional claims, thus far it has avoided them. Mainland courts, by contrast, have sometimes been eager to enforce constitutional rights and are bombarded with requests from rights-conscious citizens. Yet they are prohibited from responding.
Some mainland law reformers favour establishing an independent constitutional court, similar to the widely influential German model, but Communist Party leaders reject judicial independence at any level.
Can contemporary Chinese political culture sustain a constitutional court? The best evidence is Taiwan, whose long-standing Council of Grand Justices serves as a constitutional court. During the decades of Kuomintang dictatorship, the council was mere window dressing for supposedly "Free China". But, in the last generation, as Taiwan developed a true democracy, the council made major contributions to the political system, rule of law and human rights.
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