1 - Introduction

Summary

Hong Kong, Taiwan, and South Korea have the only courts in Asia that regularly use a structured four-stage Proportionality Analysis system to invalidate laws. They also have the only courts in Asia that routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This book explores the constitutional convergence in East Asia and explains its limits.

With the advent of globalization and the ubiquity of modern technology, the world has become highly-networked, increasingly interdependent, and a seamless transnational flow of commodities and capital is gradually erasing national boundaries.¹ These technological, economic and political developments have also generated endogenous and exogenous changes in domestic legal orders, such that independent states are slowly but inexorably converging on a swathe of rules, which regularly include policies on trade, labour, the environment and consumer safety standards.²

Constitutional ideas are not immune from this globalizing force. Mark Tushnet has projected that constitutional systems all over the world would ‘inevitably’ converge ‘in their structures and in their protections of fundamental human rights’.³ There are multiple pathways to such constitutional convergence. The changes can arise exogenously, for example when new constitutions are imposed by foreign powers on domestic states,⁴ or when countries are coerced into accepting constitutional change in exchange for economic or military aid.⁵ Other changes can be endogenous. David Law has contended that global investment and migratory patterns can positively impact human rights insofar as states intentionally ‘race to the top’ in the protection of property and human rights, so as to attract the best talents and businesses from around the world to relocate to their shores.⁶ Even as states converge as they compete for financial and human capital, states also converge as they borrow constitutional materials from one another.⁷ While constitutional borrowing does not preclude the possibility of local adaption and adjustment, Sujit Choudhry is right to recast this ‘borrowing’ phenomenon as a migration of constitutional ideas, as this ‘migration’ metaphor explicitly welcomes a wider range of uses for comparative materials and encompasses a broader range of relationships that arise between the movement of constitutional ideas and recipient jurisdictions.⁸ Specifically, this migration-driven constitutional convergence can result from the political branches of government relying on foreign materials when they entrench⁹ or amend¹⁰ a constitution. But convergence may also occur as a result of domestic judges consulting and incorporating comparative legal materials when they interpret their local constitutions.¹¹

It is this latter type of migration-driven constitutional convergence that this book will examine closely. Specifically, we will explain and explore how the constitutional jurisprudence in three East Asian democracies – Taiwan, South Korea and Hong Kong – are aligning as a consequence of domestic judicial construction and practice.

Vicki Jackson has argued that courts can converge on both outcomes and judicial methodology.¹² As we will argue in this book, both forms of constitutional convergence are indeed occurring in Taiwan, South Korea and Hong Kong. Convergence, of course, does not mean complete coincidence or uniformity.¹³ But it is striking that within Asia, these three jurisdictions have the most liberal courts that have in recent years ruled in favour of progressive causes, for example gay marriage,¹⁴ transsexual marriage¹⁵ and abortion rights.¹⁶

What is equally significant, in our view, is not just the convergence on constitutional outcomes, but also how the courts of final resort in all three jurisdictions have achieved ‘methodological convergence’.¹⁷ The Constitutional Court of Taiwan (TCC), the Constitutional Court of Korea (KCC), and the Hong Kong Court of Final Appeal (HKCFA) have converged on the use of Structured Proportionality¹⁸ (SP) in rights-adjudication, and they have also converged on the use of innovative judge-made constitutional remedies,¹⁹ which either delay or expedite the legal consequences that generally follow from the judicial declaration of an unconstitutional practice. It bears emphasizing that the judiciaries in Taiwan, South Korea and Hong Kong are the only Asian courts that apply Structured Proportionality regularly and reason through this structured, judge-made doctrinal framework sequentially.²⁰ Notably, they are also the only courts in Asia that routinely apply both Suspension Orders to delay the invalidation of an unconstitutional practice and Remedial Interpretation to rewrite an otherwise unconstitutional law.²¹

Reasons for Convergence

We should stress at the outset that the TCC, the KCC, and the HKCFA are not deliberately converging their constitutional jurisprudence with one another. The three courts seldom look to – let alone explicitly cite – one another’s precedents. For the TCC and the KCC, German law is the most persuasive foreign legal source;²² for the HKCFA, Anglo-Canadian constitutional precedents are the overseas caselaw that are most routinely referenced and endorsed.²³ But insofar as Germany and Canada/United Kingdom have converged on Structured Proportionality²⁴ and these novel constitutional remedies,²⁵ and so far as the TCC or the KCC adopts German jurisprudence (explicitly or covertly) and the HKCFA endorses Anglo-Canadian precedents, the three Asian jurisdictions are indirectly converging on liberal Western constitutional norms. Moreover, the three East Asian courts are converging on these liberal Western constitutional practices by overturning domestic laws and imposing independent constraint on state power.

There are two inter-related institutional reasons for this ‘judicialization’²⁶ of public law norms, which promotes this constitutional convergence within East Asia. First, judicialization in East Asia is fostered by a fragmentation of power within the political branches of government,²⁷ which hampers the ability of the government of the day to pursue a unified legislative agenda efficaciously. Taiwan and South Korea are classic Asian paradigms of dynamic democracies.²⁸ In a dynamic democracy, the ruling party’s control of state affairs is temporary, as competing parties regularly take turn in office. With the absence of a semi-permanent government, the judiciary enjoys more space to determine policy outcomes, as rival factions in the political branches are less likely to collaborate actively to overrule or punish the courts – especially since constitutional review by an independent branch of government provides a form of insurance for political parties when fortunes turn.²⁹ Insulated from political backlash, these courts have more opportunities and policy space to independently adopt Western constitutional practices that are inconsistent with the legislative/ regulatory status quo.

While political power is most fragmented in a competitive democracy, this fragmentation can even occur in some authoritarian democracies. Hong Kong is one such example. Notably, the Chief Executive – head of the Hong Kong Special Administrative Region (HKSAR) government – is not drawn from any political party, and there has never been a dominant political party in control of the Legislative Council since the establishment of the HKSAR in 1997. Therefore, the Chief Executive has to regularly rely on the legislative support of multiple political parties, independents and corporate representatives before any legislation in Hong Kong can be passed.³⁰ While the government can easily whip up support for laws that China considers imperative, pro-Beijing lawmakers are frequently not on the same page vis-à-vis socio-political or economic reforms that are not core concerns of the communist regime.³¹ In such circumstances, the local lawmakers would break ranks with the HKSAR government to cater to their own constituents. In essence, the absence of a unitary government in Hong Kong provides the courts with the policy space to determine substantive outcomes in a range of constitutional issues where the pro-Beijing parties themselves are divided, and the transaction costs for overriding the courts are simply too prohibitive.³²

Second, judicialization is facilitated by an independent judiciary.³³ Judges are empowered and protected when their ex ante and ex post autonomy are secured from a singular dominant external actor.³⁴ Where politicians have a significant role in the judicial appointment process, they will always seek to elevate judicial candidates who reflect their political views.³⁵ But in a dynamic democracy where political power routinely rotates between rivalling parties, different legislative factions will have their turn in picking judges, which will lead to ideological diversity on the bench. And the judges elevated to their courts of final resort will not be beholden or accountable to one political party. This is so in Taiwan and South Korea. But ex ante judicial autonomy can also be established in authoritarian democracies where politicians do not have a de facto major role in the appointment of judges. In Hong Kong, judges are in substance selected³⁶ by the nine-member Judicial Officers Recommendation Commission (JORC) chaired by the Chief Justice, and the JORC primarily comprises judges and lawyers. And it is the Chief Justice – and not politicians – who shapes the membership of his HKCFA and even the specific panels that hear the appeals. Furthermore, in Taiwan, South Korea and Hong Kong, ex post judicial autonomy is also secured insofar as the judges on their courts of final resort are protected from arbitrary removal while they hold office.³⁷ It is important to note that none of the top judges in any of the three jurisdictions has ever been impeached, nor has any top judge been compelled to resign. Ex ante and ex post judicial autonomy are interdependent and conjunctively enhance judicial power.

Aside from these institutional variables that facilitate the rise of a strong judiciary, for a liberal court to be established, liberal judges must have the opportunity to get appointed, and they must desire liberal outcomes and choose to pursue them.³⁸ Judges cherish their reputation.³⁹ But in autocratic regimes, courts can only please their primary audience – the ruling government – for their institutional survival hinges on this.⁴⁰ On the other hand, where the government is divided, and judges are protected from political reprisal, they can ‘engage in self presentation to other audiences whose esteem is important to them’,⁴¹ for example the public, lawyers, academia, the international community and luminary judges from other leading courts of final resort. Hong Kong, Taiwan and South Korea have the most liberal courts in Asia precisely because of the political fragmentation in their constitutional systems, and the insulation of their judges from the control of one dominant party in government, which allow for independent liberal judges to be regularly appointed to the highest court. And these liberal judges in turn can hand down liberal rulings when they have a majority. Such independent liberal judges in East Asia can therefore forge a ‘constitutional identity’⁴² for their jurisdiction that deviates from the status quo imposed by their governments.⁴³ For Hong Kong, liberal-minded judges would turn to human rights standards established in England and Canada to advance their progressive causes, while the Korean and Taiwanese Constitutional Courts would seek assistance from German law. The judicial endorsement of foreign precedents from ‘high prestige courts and countries’⁴⁴ that have deep historical legal ties⁴⁵ to their jurisdictions in fact bolsters the legitimacy of the Courts’ use of these decisions. In this way, the judges can parry off insinuations that they are merely foisting their own personal vision upon society, but are instead converging their Asian practices with the established norms of exalted, modern states in the West that their own legal systems are modelled after.

Convergence on Structured Proportionality

In the aftermath of the Second World War, a ‘post-war paradigm’⁴⁶ of domestic constitutional law emerged, with legislatures around the world adopting a domestic charter of rights and empowering their courts to independently determine whether state limitations on these rights are demonstrably justified, and to invalidate those laws that are not.⁴⁷ The Proportionality Analysis (PA) – in its various forms and configurations – developed as the umbrella term used to reference the different ways judges weight the relative importance of state interests and evaluate the extent to which this conflict can be minimized by a more careful choice of legislative means that is less injurious to the individual.⁴⁸

While PA may have originated from Germany,⁴⁹ it has not remained a European product. PA has been locally transplanted across Anglophone nations (for example, Canada and New Zealand), mixed legal systems that are rooted in the common law (for example, Israel and South Africa) and even parts of Latin America and Asia.⁵⁰ In view of PA’s ubiquity, it is now widely viewed as a ‘general principle of constitutional governance’,⁵¹ an embodiment of ‘generic constitutional law’⁵² and even celebrated as the ‘ultimate rule of law’.⁵³

Strong courts around the world generally apply a more structured version of PA.⁵⁴ Typically, this Structured Proportionality (SP) has four cumulative steps. When applying SP, the courts would ensure that (i) the state is pursuing a legitimate aim; (ii) the governmental measure undertaken is rationally connected to the stated policy objectives; (iii) the right-derogation is no more than necessary to achieve those stated goals and (iv) the regulatory measure is proportionate stricto sensu; that is, there is a fair balance struck between the rights of the individual and the interests of the community such that the consequences of the law are not unacceptably harsh on the individual.

Within Asia, Taiwan, South Korea and Hong Kong are exceptional insofar as their courts are the only ones that have converged on the use of SP. Their judges reason through the four SP stages sequentially and harness SP to overturn state action regularly.

Notably, SP is a judicial construct in all three East Asian democracies. The Hong Kong Basic Law does not even include a general limitation clause for rights. While the Constitutions of Taiwan⁵⁵ and South Korea⁵⁶ both have one, many of the doctrinal SP steps their Constitutional Courts apply are not found in these clauses, and the relevant clauses also do not give any guidance on the standard of review judges should adopt, let alone authorize judges to re-balance legislative policy determinations. Notably, in Hong Kong, when the four-stage SP was first endorsed, the HKCFA not only relied on caselaw from Canada and the United Kingdom, it also referenced the writings of Dieter Grimm and Aharon Barak.⁵⁷ The KCC has also consulted German precedent when it applied the balancing test of SP.⁵⁸

In its early permutations, PA in each jurisdiction was unstructured and was deployed only to uphold state action.⁵⁹ But as power fragmented across the political branches of government, and/or courts gained confidence over time, the judges inserted more structure into PA, gravitated toward a ‘highly intrusive standard of review’,⁶⁰ and began using SP to void legislation. The fragmentation of power within the political branches of government and the protection of courts from punishment is central to the rise of SP.

For all three courts, Stage 1 of SP – the legitimacy test – is rarely deployed to void legislation. But where it is, the laws void under Stage 1 usually pertain to anachronistic legislation that is patriarchal⁶¹ or heterosexist.⁶² Therefore, Stage 1 of SP provides judges in all three courts with the opportunity to reshape the jurisdiction’s constitutional culture, pursue progressive causes and make society more inclusive. Stage 2 of SP requires the governmental measure to have a ‘rational connection’⁶³ to the legislative aims or for the means chosen to be ‘appropriate’.⁶⁴ Usually a low threshold for the government to overcome, in exceptional circumstances, Stage 2 has extraordinary bite. Hong Kong rules limiting social welfare payments to its Permanent Residents,⁶⁵ Taiwan legislation imposing interest payments on penalty surcharges for unpaid taxes,⁶⁶ and South Korean anti-trust regulations on news conglomerates⁶⁷ were all void for failing Stage 2, even though these invalidated rules all concern socio-economic policies that traditionally attract judicial deference. Furthermore, Stage 2 has been deployed in pursuit of progressive human rights causes opposed by their governments: ending indefinite detention of undocumented migrants in Taiwan,⁶⁸ decriminalizing adultery in South Korea,⁶⁹ and granting expatriates in same-sex marriages the same right to spousal visas as heterosexual married couples in Hong Kong.⁷⁰ The Courts most frequently use Stage 3 of SP – the necessity test – to overturn the legislative status quo, as it allows the judiciary to point to reasonable but unexplored policy alternatives that would have been just as effective. Recently, the KCC deployed Stage 3 to invalidate the virtually blanket ban on abortions in South Korea.⁷¹ With this progressive ruling, South Korean women, vis-à-vis their counterparts in Taiwan⁷² and Hong Kong,⁷³ will be able to exercise a comparable right to their bodily autonomy. Stage 4 of SP requires courts to openly re-calibrate the legislative balance struck by the government, and all three courts have sparingly invalidated laws on this ground, but it is notable that the KCC and TCC have used this ground to assess the proportionality of statutory minimum sentences imposed on a variety of penal offences.⁷⁴ In Chapter 3, on SP, we will survey the full gamut of constitutional law in these three East Asian democracies, for example free speech,⁷⁵ freedom of assembly,⁷⁶ criminal due process,⁷⁷ prisoners’ rights,⁷⁸ the right to work,⁷⁹ sexual autonomy⁸⁰ and the right to property,⁸¹ to underscore the extraordinary convergence in these jurisdictions.

But we must emphasize at the outset that the judicial deployment of SP in itself does not guarantee policy uniformity across all three jurisdictions. Convergence does not mean homogeneity.⁸² For example, using SP, the TCC has scuttled the government’s plans to fingerprint all its citizens,⁸³ while the KCC has condoned this governmental practice.⁸⁴ The KCC⁸⁵ is also less enlightened on gay rights than its Taiwanese⁸⁶ or Hong Kong⁸⁷ counterparts. But Chapter 3 will definitively show that the said convergence in these three East Asian democracies far exceeds the divergence.

Naturally, we should stress herein that we are not arguing that convergence on the use of SP will automatically lead to a convergence on more liberal outcomes. Methodological convergence on SP does not guarantee substantive convergence. But what SP does – and successfully so – is to provide judges with a standardized and sequenced doctrinal template with which to scrutinize governmental derogation on rights,⁸⁸ such that the courts have a legal basis to overturn state action if they so choose. Furthermore, the doctrinal acceptance of SP – as opposed to a deferential standard of review – in these East Asian democracies holds the promise and increases the probability of a more rights-friendly outcome, because judges now have recourse to a heightened standard of review to evaluate the constitutionality of governmental action. It is therefore no coincidence that with the availability and use of SP, Taiwan, South Korea and Hong Kong have the most progressive and consequential courts in Asia. Conservative courts – like the courts of Singapore – will always reject SP because the use of SP will require them to sequentially scrutinize whether the impugned law is legitimate, suitable, necessary and balanced; and conservative courts will take pains to avoid this. A deferential standard of review over governmental action will allow the judges to uphold the impugned law more easily and quickly.⁸⁹ In short, a court that chooses only to use a deferential standard of review will never be a liberal one.⁹⁰ But courts that adopt SP have the highest chance of reaching liberal results when liberal judges are on the bench. Political scientists have argued that judges apply a deferential standard of review when their extra-legal preferences are for deference, and a more robust standard of review when their extra-legal preferences are for judicial intervention.⁹¹ We do not disagree with this. Our point herein is only that when SP is on the table, liberal judges can use this doctrinal tool when they so choose. But courts without SP lack the same legal infrastructure for regular judicial intervention to subvert pre-existing law.

Convergence on Innovative Constitutional Remedies

Where courts are empowered to review the constitutionality of legislation, the standard practice is for the judiciary to invalidate the law, when it is deemed unconstitutional, to the extent of its inconsistency. The unconstitutional law is also invalidated immediately and the courts would leave it to the legislature to introduce remedial legislation post-invalidation.

However, with the rise of the modern state, and the realist swing towards remedial discretion, both common law and civil law courts have implemented innovative constitutional remedies that complement the power to declare legislative actions incompatible with their respective bills of rights.⁹² One such remedial innovation relates to the court’s power to interpret legislation in a rights-compatible way.⁹³ In essence, this interpretive power creates ‘a practical power of law reform (in substance, a legislative power)’⁹⁴ for the judiciary. In tandem with this power of Remedial Interpretation (RI) courts have also issued Suspension Orders. In such instances, the impugned law is deemed to be unconstitutional, but the judiciary delays this declaration, usually with a fixed deadline, so that the legislature is given time to pass corrective legislation.⁹⁵

Notably, in Asia, the courts in Taiwan, South Korea and Hong Kong are the only ones that regularly rely on both RI and Suspension Orders to rectify constitutionally flawed legislation. Furthermore, neither remedy is expressly authorized by legislation or their respective Constitutions. These novel remedies were wholly created by their top judges. The HKCFA referenced the Supreme Court of Canada when the former first created its Suspension Order.⁹⁶ English law was cited when the HKCFA first used RI on an impugned law.⁹⁷ When a Suspension Order – known in Korea as a decision of incompatibility⁹⁸ or non-conformity⁹⁹ ruling – was first issued by the KCC, the Court referred to German law for this.¹⁰⁰ Similarly, when the KCC first applied RI – known in South Korea as a decision of limited¹⁰¹ or conditional¹⁰² constitutionality/unconstitutionality – German law was relied on.¹⁰³ The judicial use of both remedial techniques was heavily criticized by the dissent in the two Korean decisions as, according to the dissent, Germany had statutory authorization for these remedial measures,¹⁰⁴ while the KCC was only empowered to hand down a ‘decision of unconstitutionality’.¹⁰⁵

With the convergence on the enforcement of these innovative constitutional remedies, these three courts have delayed or expedited the legal consequences that generally follow from the judicial declaration of an unconstitutional practice, thereby blurring the traditional distinction between adjudication and legislation.

The judicial use of a Suspension Order is most defensible when there is a range of constitutional options that could be implemented in light of the court’s ruling,¹⁰⁶ such that due deference is paid to the primacy of the legislature’s law-making role when lawmakers are granted the space and time to make the initial determination on how best to discharge their constitutional responsibility among the competing policy options available.¹⁰⁷ Such judicial orders are dialogic, as the court initiates the conversation when it accepts the rights claims advanced by the litigants, but parliament completes the conversation when it decides how best to complement and implement the judicial ruling.¹⁰⁸ While both the South Korean¹⁰⁹ and Hong Kong¹¹⁰ courts deemed the blanket ban on prisoner voting incompatible with their Constitutions, both courts issued a Suspension Order and neither court dictated to the lawmakers the details of an acceptable legislative sequel. In the end, the Hong Kong Legislative Council decided to give every prisoner the vote, while the South Korean National Assembly decided to limit this to prisoners sentenced to less than one year of imprisonment.¹¹¹

The use of such Suspension Orders is not without its critics. Robert Leckey has warned that the increased use of delayed remedies harms individual rights-bearers, as the latter may be victorious in court but deprived of a remedy until corrective legislation is enacted, if at all.¹¹² While Leckey’s concerns over the over-use of delayed remedies are valid, in Taiwan, South Korea, and Hong Kong, the uncertainties associated with the application of Suspension Orders have been mitigated by the courts. These Asian judges are more ‘experimentalist’¹¹³ and they have converged in adding significant ‘bite’ to their delayed declarations of invalidity such that the government is incentivized to comply with the court’s ruling, or judicial safeguards are put in place to mitigate any legislative or executive delinquency.

In South Korea, since 1993,¹¹⁴ the KCC has used a variant of this Suspension Order, which is termed a ‘simple’¹¹⁵ decision of non-conformity. When this ‘simple’ decision of non-conformity is issued, the government is prohibited from enforcing the unconstitutional legislation pending its review, and there is ‘an immediate suspension of the underlying proceeding [in the lower courts] that gave rise to the constitutional challenge’.¹¹⁶ On the other hand, in Hong Kong, the HKCFA has determined that the government is not shielded from any legal liability incurred if the latter abuses its authority while the delayed declaration of invalidity is in effect.¹¹⁷ Furthermore, in both Taiwan and Hong Kong, the courts have coupled their use of a delayed declaration of invalidity with a remedial reading-in proviso that takes effect automatically, in the event of any legislative default, upon the expiry of the suspension period. In W (2013),¹¹⁸ the HKCFA ruled that it was unconstitutional to prohibit a post-operative male-to-female transsexual from marrying in the capacity of her acquired gender. While a delayed declaration of invalidity was issued that gave the Hong Kong legislature one year to reform this area of law, the Court also decided that upon the expiry of the 12-month suspension period and in the absence of any legislative intervention, the post-operative male-to-female transsexual person would be automatically recognized as a woman for the purposes of marriage in Hong Kong.¹¹⁹ In the same vein, when the TCC in 2017 declared that the nation’s ban on same-sex marriage was unconstitutional, it gave the legislature two years to remedy this legislative exclusion, but if the Legislative Yuan defaulted after the deadline, the Court held that same-sex couples would be entitled to ‘apply for marriage registration to the authorities in charge of household registration … and [they] shall be accorded the status of a legally-recognized couple’.¹²⁰ Furthermore, the Constitutional Courts and Taiwan and Korea have even issued interim remedial readings of the impugned law pending legislative review.¹²¹

On the other hand, an RI of an impugned law – whereby the courts read in words or read down the legal effect of statutory language, without resorting to an outright invalidation – is often defended on the basis that the legislature would prefer ‘its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted’.¹²² Unlike a typical canon of constitutional avoidance, which allows a court to adopt an interpretation of a statute that is constitutionally less problematic when there are ‘two equally plausible’¹²³ readings of the legislation, an RI of the impugned law goes even further: even if the statutory language is clear, the judiciary will read lengthy phrases and even sentences into the impugned legislation, so as to make it constitutionally compliant. In Yeung May Wan (2005),¹²⁴ the HKCFA held that police powers must be ‘construed consistently with [Hong Kong’s] constitutional guarantees against arbitrary arrest’;¹²⁵ and hence the impugned statutory provision that permitted a police officer to apprehend a person ‘who he reasonably believes will be charged’ must be read down to mean ‘who he reasonably believes will be charged on the basis of a reasonable suspicion that the arrested person is guilty of the offence to be charged.’¹²⁶ In the same vein, the TCC has read down the punitive effects of a draconian law that criminalized defamation; while the constitutionality of the impugned law was upheld, the TCC determined that where the accused has ‘no way of showing the truthfulness of the statement, the court must find the accused not guilty when the evidence proffered for the court’s review shows that the accused has reasonable grounds to believe that the statement was true at the moment of dissemination’.¹²⁷ As for South Korea, RI – termed ‘a decision of limited constitutionality’¹²⁸ – was first applied in July 1989 when the KCC declared that a tax law, which required beneficial owners of real property to also hold the registered title,¹²⁹ was constitutional if it was interpreted to exempt beneficial owners who did not hold the registered title for legitimate non-tax evasion purposes.¹³⁰ Subsequently, in 1991, the KCC issued its first decision of limited unconstitutionality.¹³¹ The judicial power to award ‘suitable measures to restore the injured party’s fame’¹³² was deemed unconstitutional if it was interpreted to include a power to compel the defendant to apologize to the plaintiff. (The regulatory breadth of a comparable law in Taiwan was also narrowed by the TCC.¹³³) The KCC has acknowledged that in substance both ‘modified’¹³⁴ rulings are the same and have equal binding force.¹³⁵

Such ‘strained interpretation’¹³⁶ of impugned legislative provisions creates a legislative power for the judiciary, but where the requisite changes needed to the law do not require the government to deliberate over a range of complex polycentric policy alternatives, such piecemeal reforms writ small undertaken by the judges themselves may also be more expedient and effective, especially if there are more important items on the legislative agenda.

Furthermore, all three courts have converged in using RI when an open invalidation of the impugned law would trigger governmental disquiet or public backlash. By incrementally modifying the text of the law on its own, instead of openly deeming the legislation in question unconstitutional, the court diffuses potential political opposition, while quietly adjusting the operational meaning of the flawed statute to achieve greater constitutional compliance. When the TCC was confronted with a challenge to the constitutionality of a legislative provision that imposed strict liability on any person who publishes any information in any medium which may induce a person to engage in sexual activity with a child/ juvenile,¹³⁷ the Court was hard-pressed to uphold this dragnet law. Therefore, on its own initiative, the Court decided to read-in a new defence into the legislation: any information distributed by [the accused] which ‘neither contains child or juvenile sexual transaction nor is intended to induce children or juveniles to engage in sexual transaction and necessary precautionary measures have been taken to limit the recipients of such information to those who are eighteen years of age or older’¹³⁸ would not violate the statute in question. Similarly, in view of the country’s long-standing tensions with North Korea, the KCC was understandably reluctant to openly invalidate legislation pertaining to national security. So instead, vague and overbroad penal provisions, which criminally sanctioned any person who praised or sympathized with the activities of anti-government organizations, were read down such that the law would only apply if ‘national security and the basic order of free democracy’‘¹³⁹ was threatened. Draconian laws that punish the unauthorised dissemination of all military secrets were also judicially confined to classified materials that, if disclosed, would ‘pose a clear threat to national security’.¹⁴⁰ Such constitutional avoidance seeks to preserve the Court’s reputation and institutional capital, as judges ‘effectively re-write laws while pretending to exercise restraint’.¹⁴¹ Similarly, in Hong Kong, an administrative by-law that imposed a blanket prohibition on all signs and messages, including signs or messages on a person’s clothing in the public gallery of the Legislative Council, was read down by the HKCFA, such that the impugned by-law would only apply to ‘conduct which amounts to behaving in a disorderly manner.’¹⁴² Notably, the HKCFA did so by adopting a statutory construction that conflicted with the plain meaning of the law, while still claiming fidelity to the legislature’s intent. Unlike an express declaration of unconstitutionality, such judicial acts of ‘passive avoidance’¹⁴³ allow the HKCFA to spearhead constitutional change on the stealth, thereby avoiding public disquiet that the Court is now expressly condoning chaos.

But there are of course differences in how the three East Asian courts apply these innovative remedies, which we will explore. Specifically, the main differences pertain to the judicial use of Suspension Orders. In Hong Kong, a Suspension Order is always accompanied with a fixed deadline for legislative compliance,¹⁴⁴ and occasionally the Court imposes a remedial reading-in proviso that takes effect automatically if there is no remedial law at the end of the suspension period.¹⁴⁵ The latter remedy also exists in Taiwan,¹⁴⁶ but not South Korea. Unlike Hong Kong, in South Korea and Taiwan, their Constitutional Courts have also issued Suspension Orders – albeit occasionally – that do not impose a deadline for legislative compliance.¹⁴⁷ Furthermore, in Taiwan and South Korea, their Courts have even issued interim remedial readings of the impugned law pending legislative review.¹⁴⁸ This has not happened in Hong Kong. But we must not miss the forest for the trees. The indisputable fact remains that Hong Kong, Taiwan and South Korea are the only jurisdictions in Asia with courts that have converged on the regular and routine use of Suspension Orders and Remedial Interpretation when engaging in constitutional adjudication.

Limits on Convergence

But there are limits to this constitutional convergence. The three courts will not converge on electoral reform and matters impacting national security. While Taiwan and South Korea are dynamic democracies, where competing political parties take turn in office, Hong Kong is a sub-unit of communist China. And China will not tolerate any judicial attempts to remove the Central Government‘s relentless chokehold on the city. Therefore, the pursuit of major electoral systemic changes, personnel changes adverse to China’s core interests, or challenges that are perceived to undermine national security or sovereignty are simply off-limits to the Hong Kong judiciary.

There is a symbiotic relationship between a country’s state of democratization and the long-term sustainability of the power that its judges can wield in generating electoral change.¹⁴⁹

While China will acquiesce to the HKCFA’s efforts to advance human rights protection in Hong Kong, the Central Government will not allow the local courts to usher in democratic reform that threatens its rule. The Standing Committee of the National People’s Congress is empowered to overturn every constitutional decision issued by the Hong Kong courts,¹⁵⁰ and the former in fact did so in the very first constitutional decision handed down by the HKCFA that it took issue with.¹⁵¹ With the Standing Committee of the National People’s Congress (NPCSC)’s plenary power to interpret the Basic Law hanging like the sword of Damocles over Hong Kong, the HKCFA implicitly understands that its ability to generate significant changes in other areas of constitutional law is contingent on its genuflection to Beijing on the communist regime’s core concerns.

As China’s authoritarian impulses intensify under President Xi Jinping,¹⁵² the Hong Kong judiciary has also increasingly toed the party line on democratic change. In 2017, the HKCFA for the first time announced that ‘electoral laws involve political or policy considerations, [and therefore] a wider margin of appreciation ought generally to be accorded’¹⁵³ to the government. With this pronouncement, the HKCFA sounded the death knell for the constitutional review of electoral law.¹⁵⁴ Furthermore, the Hong Kong courts have also proceeded to oust duly elected pro-democracy lawmakers from office¹⁵⁵ and bar pro-Hong Kong independence candidates from running for office.¹⁵⁶

In June 2020, the NPCSC annexed a new national security legislation to the city’s Basic Law. Secession, subversion of state power and collusion with foreign governments, are now criminal offences, and offenders may face up to life imprisonment for grave violations. Notably, while Hong Kong courts have been conferred jurisdiction to adjudicate most cases brought under this law, and local criminal law procedures and human rights safeguards would continue to apply, in serious cases where foreign governments are involved or the Hong Kong government is unable to enforce the law effectively, the Chinese procuratorate and courts are legally empowered to take over. The Chief Executive of Hong Kong – in consultation with the Chief Justice – will decide on the list of judges who will hear these national security cases, but it is important to note that all these national security judges will only be drawn from the pool of pre-existing Hong Kong judges.¹⁵⁷ As of 1 May 2021, no one has been extradited to China to face trial under the National Security Law (NSL), but 54 people have been charged under this law. 47 of those persons charged under the NSL are pro-democracy activists who had organized an informal election primary to field candidates who can win seats in the Legislative Council election, and subsequently block the passage of the government’s budget, thereby forcing the Chief Executive’s resignation.¹⁵⁸ But it is important to note that the Hong Kong judiciary has emphasized that only common law principles – and not Mainland Chinese legal doctrines – will be used to interpret the NSL.¹⁵⁹ We will fully examine the details and implications of this NSL on Hong Kong in Chapter 5.

In contrast, in dynamic democracies where political power is diffused among competing political parties and branches of government, the empowered courts have facilitated their nations’ democratic transformation by making both micro and macro systemic changes to enhance the fairness of voting procedures and electoral institutions. These ‘consequential’¹⁶⁰ courts are able to directly address institutional failures in the political system, including, but not limited to, the anti-competitive ‘rules of engagement [enacted] to protect established powers from the risk of successful challenge’.¹⁶¹

Vis-à-vis Taiwan, the TCC has chastised the nation’s President for concurrently appointing his Vice-President as Premier;¹⁶² successfully invalidated constitutional amendments that attempted to extend the term of existing National Assembly¹⁶³ delegates;¹⁶⁴ and authorized state prosecutors to collect incriminating evidence against President Chen Shui-bian while he was in office, which could be used against him after his presidential term concluded.¹⁶⁵

Similarly, in South Korea, the KCC has been able to mitigate the effects of systemic political barriers erected by lawmakers to preserve incumbency: prohibitive deposits for National Assembly¹⁶⁶ and presidential¹⁶⁷ elections, gerrymandering of electoral constituencies¹⁶⁸ and disenfranchisement of small political parties.¹⁶⁹ A particularly significant decision was handed down in 2001 when the Constitutional Court mandated that each voter be allowed to cast two votes in the National Assembly election: one for his or her preferred individual candidate in the electoral district and the other for the preferred political party that would field the proportional representative in the national legislature.¹⁷⁰ (Prior to the 2004 National Assembly election, a voter could only vote for the district representative and proportional representative seats were allocated in proportion to the votes the political parties received in the electoral districts.) Most fascinatingly, the KCC in 2017 unanimously removed President Park Geun-hye – the nation’s top leader – from office on the basis that the President had unlawfully allowed her close confidante to intervene in state affairs for over three years.¹⁷¹

Conclusion

This book seeks to provide important insights into why and how the constitutional jurisprudence in East Asia converges. Chapter 2 begins by explaining why this convergence in Taiwan, South Korea and Hong Kong is occurring. For each of the three jurisdictions, this chapter will closely explore how power in the political branches of government is fragmented, and how its highest court of final resort is insulated from legislative/executive control. With these institutional variables in place, liberal judges can get appointed to the highest court, and these judges can intentionally build their respective Court’s institutional capability in selected Western law and use these foreign liberal precedents to subvert local legislation. To underscore our point, this Chapter will also examine Japan. Like Taiwan, South Korea and Hong Kong, Japan is one of the world’s most advanced economies. But unlike its East Asian brethren, Japan has been ruled – almost continuously¹⁷² – by a monolithic centre-right party (Liberal Democratic Party (LDP)) since 1955, and this singular dominant party has been able to stack the nation’s highest court with its ideological allies on a regular and uninterrupted basis.¹⁷³ Therefore, while the TCC, KCC and HKCFA have been able to acquire policy space to independently adopt Western constitutional practices that are inconsistent with pre-existing law, the Supreme Court of Japan has largely been a handmaiden of the dominant ruling regime and has affirmed the constitutionality of almost every impugned legislation.¹⁷⁴

Notably, while Japan’s LDP has practically controlled Japan for almost seven decades and is merely maintaining the status quo vis-à-vis its judiciary, any Chinese intervention in Hong Kong’s judicial operations would unsettle the ‘One Country, Two Systems’ political status quo. Vis-à-vis social and political institutions, ‘once a country or region has started down a track, the costs of reversal are very high. There will be other choice points, but the entrenchments of certain institutional arrangements obstruct an easy reversal of the initial choice’.¹⁷⁵ In Hong Kong, the people and foreign investors are accustomed to a legal system based on a liberal common law framework. It will be prohibitively costly for Beijing to subvert Hong Kong’s legal system, since confidence in Hong Kong’s stability is crucial to maintaining the city as a gateway for foreign financial capital to invest in China.¹⁷⁶ Furthermore, Chinese State Owned Enterprises controlled by the Communist Party rely on Hong Kong to raise capital for its own political and economic ambitions.¹⁷⁷ Therefore, unlike the LDP’s overwhelming and uninterrupted control over the Japanese Supreme Court, China can and will only interfere with the Hong Kong judiciary when Beijing’s core interests in Hong Kong are at stake.

Chapter 3 will continue by exploring how the three courts have converged on Structured Proportionality (SP) and examine common themes on how SP is practised across the three jurisdictions. Chapter 4 will analyse the courts’ convergence on two innovative constitutional remedies – the Suspension Order and the Remedial Interpretation of legislation – that allow the courts to either postpone or expedite the legal consequences that generally follow from a judicial declaration of an unconstitutional practice. Finally, Chapter 5 concludes by addressing the limits of this constitutional convergence. Hong Kong is a sub-unit of communist China, and, while it remains so, the courts will have no role in making major electoral changes or impeding Beijing’s sovereignty over the city. On the other hand, in the dynamic democracies of Taiwan and South Korea, where there is an absence of a singular hegemonic political player, the courts have been able to significantly reshape their political environment and contribute to democratic politics.

Courts are political institutions.¹⁷⁸ And judges do not operate in an institutional or ideological vacuum, as they are shaped by the social, political and economic struggles that take place within their political systems.¹⁷⁹ Where the strategic environment confers a ‘zone of discretion’¹⁸⁰ on the courts, the judges can construct a constitutional identity for their jurisdiction distinct from their government’s vision, and redefine the polity’s place in the world.¹⁸¹ And this constitutional convergence in East Asia will endure so long as the political system in each jurisdiction remains fragmented, the courts continue to be independent and judges choose to align their local jurisprudence with Western human rights law.