Judicial comparativism and judicial diplomacy.
A. Level of Foreign Law Citation
It is relatively rare for the KCC to actually cite foreign law in its opinions. Sources inside the KCC estimated that foreign law, in the form of judicial precedent or otherwise, is explicitly cited in no more than 5 to 10% of decisions. (121)
B. Level of Foreign Law Usage
Although the KCC is reluctant to cite foreign law, it has embraced the use of foreign law. The degree to which the KCC has routinized and institutionalized foreign legal research is breathtaking. Its mechanisms for researching and analyzing foreign law range from specialized researchers hired specifically for their foreign legal credentials, to the establishment of a freestanding research institute that publishes comparative constitutional scholarship and monitors the work of constitutional courts around the world.
Sources inside the KCC gave estimates of how frequently foreign legal research is conducted that ranged from 60% of cases to "always." (122) The decision to research foreign law in a given case is usually made by the Constitutional Research Officer (CRO) responsible for preparing the bench memorandum. As discussed below, CROs are roughly equivalent to law clerks but are significantly more experienced and much more likely to possess foreign legal training than their American counterparts. On rare occasions--perhaps 5 to 10% of the time--foreign legal research will be performed at the specific request of a justice. (123)
C. Jurisdictions Considered
The jurisdictions most often considered by the KCC are Germany, the United States, and Japan, in roughly that order. Interest in the case law of the ECtHR is growing, and research on French law is also conducted from time to time. The KCC's attention to German and Japanese law is partly a legacy of the imposition of Japanese law during the colonial period. Because Japanese law at the time was inspired by German law, Korean law borrows heavily but indirectly from German law as well. Research on German law is conducted at least half of the time. (124)
American law receives attention in approximately 20% of cases and is especially likely to be considered in freedom of expression and habeas corpus cases. The lack of social and economic rights in the U.S. Constitution was identified by several sources as a factor that limits the relevance of American jurisprudence to the KCC. However, the use of American law is on the rise. Korean emphasis on the acquisition of English-language skills and interest in professional opportunities for American-trained lawyers have helped to tip the balance of foreign legal training away from German law toward American law. It is widely felt among younger Koreans, including law students, that English opens a wider range of professional opportunities than other languages such as German.
Japanese law is considered in a small, and declining, proportion of cases, in the neighborhood of 15%. Cases involving older statutes that date back to Japan's occupation of Korea continue to call for Japanese legal research. However, Japan was described as offering "little constitutional jurisprudence" and "little to learn" because the JSC is "too conservative" and "never strikes anything down." (125) Through the mid-1980s, the training curriculum for Korean judges included a Japanese language requirement. It is perhaps both a cause and a symptom of declining judicial interest in Japanese law that the requirement was abandoned in the late 1980s.
Like the JSC and TCC, the KCC appears to pay relatively little attention to courts from common law jurisdictions other than the U.S. Supreme Court.
Neither the Canadian Supreme Court nor the South African Constitutional Court was identified as a major influence or regular point of comparison. A recently retired justice opined that the KCC is "expanding its repertoire, slowly" and cited as evidence the deliberate recruitment of researchers to specialize in the European Court of Human Rights. (126) However, when asked about the actual impact of the ECtHR, a veteran court official indicated that its jurisprudence is considered "from time to time," but "not that often." (127)
The holdings in the KCC's library offer a rough but quantifiable proxy for the court's interest in specific jurisdictions and in foreign law more generally. Of the roughly 125,000 volumes held by the library, 55% are of foreign origin. (128) The library's constitutional law collection is skewed even more heavily in a comparative direction. German volumes make up 28% of the collection, while Korean volumes make up only 25.5%. (129) English-speaking jurisdictions (including the United States, the United Kingdom, and the rest of the Commonwealth) together contribute 18.6% of the total, while Japan by itself accounts for 16%. Leading the remainder are France with 5% and Austria with 1.3%.
D. Level of Foreign Law Expertise
The KCC's means of learning about foreign legal systems are remarkably varied and extensive. Its repositories of foreign legal expertise include: (1) the justices who have studied overseas; (2) the permanent law clerks who possess foreign legal expertise; (3) the law clerks hired as specialists in foreign law; (4) the law professors who work for the court on a part-time basis; (5) experts hired by the parties; and (6) the newly established Constitutional Research Institute. Each will be discussed in turn.
1. The Justices Themselves
With respect to the proportion of its membership that has studied law abroad, the KCC falls between the JSC and the TCC. Four of the nine justices have studied law overseas: three hold LL.M. degrees from the United States (two from the University of Michigan, one from Southern Methodist University), and one studied criminal law at the Max Planck Institute in Germany. (130) The members of the KCC have all traditionally been recruited from the career judiciary or the prosecutor's office; no law professor has ever been appointed to the KCC.
The level of foreign training possessed by the justices is likely to grow over time as a result of the Korean judiciary's expanding study-abroad program. (131) At present, the Korean judiciary provides funding for roughly sixty judges to study overseas for one year at government expense. (132) Judges who apply successfully for this program are awarded full tuition and a stipend that is slightly lower than their usual judicial salary. (133) Another forty or so judges are given a lower level of financial support to study abroad for a shorter period of six months as visiting scholars. (134) Judges are ordinarily eligible to apply for the study-abroad program from their seventh through tenth years of service. Given that there are roughly two hundred judges in any given cohort, the overall proportion of Korean judges who study abroad at some point approaches, if not exceeds, one-half. (135) Moreover, the Korean Supreme Court has recently announced a dramatic expansion of the program: all judges appointed after (2003) have now been promised the opportunity to study abroad, albeit as visiting scholars rather than degree candidates. (136)
The official application for overseas study lists as possible destinations the United States, the United Kingdom, Canada, Germany, France, Switzerland, Japan, China, Spain, Russia, Australia, and Italy, but the list is not exclusive, and other countries may be requested "with enough evidence of necessity." Judges express their preferences for particular institutions from a list approved by the Korean Supreme Court, which allocates applicants among the various institutions. The judges themselves are then responsible for gaining admission to the institutions to which they are assigned. As a practical matter, a major obstacle to a successful application is demonstration of the requisite language skills: some judges attend cram school on weekends in order to muster the necessary TOEFL score.
Notwithstanding the historical importance of German and Japanese law, roughly two-thirds of Korean judges opt for English-speaking jurisdictions, with a particular bias in favor of the United States. For the 2013-2014 academic year, out of a total of sixty-five judges receiving full funding for their overseas studies, forty-three selected English-speaking countries, of whom the overwhelming majority (thirty-five) chose the United States (thirteen as LL.M. students and twenty-two more as visiting scholars). (137) The United Kingdom has three, Canada and Australia each have two, and one opted for the Netherlands (which the Korean judiciary classifies as an English-speaking jurisdiction for purposes of study abroad). (138) By contrast, eight judges went to German-speaking countries (six to Germany itself, one to Austria, and one to Switzerland). (139) Only two chose Japan, which is now tied with China and is less popular than either France (five judges) or Spain (three judges). (140)
Both the judicial preference for English-speaking countries, and the level of familiarity in Korea with American law more generally, are likely to grow in the future. A number of Korean judges attributed the preference for English-speaking countries to the heavy premium that Korean society places on the acquisition of English-language skills. Judges view time spent in the United States as an opportunity for their children to be exposed to the American educational system and to learn English. Law students in particular value English for the access that it gives them to the American legal market as well as elite Korean law firms, which have recruited large numbers of foreign-qualified lawyers. (141) These trends are both reflected and reinforced by government regulation of Korean legal education. The law school accreditation committee established by the Korean ministry of education has adopted guidelines that call upon Korean law schools to offer at least eight courses in foreign languages. (142) Although some law schools offer courses in Japanese and Chinese, the majority of the foreign-language offerings are in English. (143)
2. Constitutional Research Officers (CROs)
Compared to their counterparts elsewhere in East Asia or in the United States, the justices of the KCC enjoy access to higher levels of research assistance and foreign legal expertise. The KCC has at its disposal four types of support personnel who possess varying levels of foreign legal training and perform a combination of distinct and overlapping tasks: Constitutional Research Officers (CROs), Constitutional Researchers (CRs), Academic Advisers, and researchers at the KCC's Constitutional Research Institute.
Of these four types, the CROs are most analogous to law clerks of the American variety but are more numerous and more experienced. Most CROs are permanent employees who have passed the infamously demanding Korean bar examination (144) and are comparable in rank and pay to career judges. They are hired not by individual justices, but by the President of the KCC upon a collective vote of the justices. (145) Relatively demanding eligibility requirements are imposed by statute: a CRO must be a judge, prosecutor, or attorney; a legal academic of assistant professor rank or higher at an accredited university; a "Grade 4 or higher" public employee with five or more years of experience in "law-related positions in state agencies"; or a holder of a doctorate in law with five or more years of "law-related" experience in a state agency, university, or other research institute specified by KCC regulation. (146) Those who pass the selection process serve for renewable ten-year terms. A relatively inexperienced CRO may possess two to four years of experience; some possess over a decade of experience and have served longer than the justices themselves.
The KCC also has at its disposal a number of temporary CROs. The Korean Supreme Court has a longstanding practice of dispatching judges to assist the KCC. Likewise, the Ministry of Justice regularly loans prosecutors to the KCC to serve as CROs. As of this writing, the KCC has over seventy CROs in total, including fifty-six regular CROs (five of whom are currently seconded to the Constitutional Research Institute), fourteen judges on loan from the Korean Supreme Court, four prosecutors on loan from the Ministry of Justice, and two temporary CROs on loan from miscellaneous government agencies (one from the Korean equivalent of the Internal Revenue Service and another from the Ministry of Government Legislation).
Under reforms initiated by the KCC's newly installed chief justice in 2013, a majority of the CROs are assigned to individual justices. Court administrators assign to each justice the equivalent of three and a half CROs. (147) Typically, each justice is assigned two regular CROs plus a career judge on loan from the Korean Supreme Court. In addition, each justice shares a CRO from the prosecutor's office with one other justice. With the exception of a handful who perform administrative or supervisory roles, the remaining CROs are divided by subject matter into three teams: liberty rights (meaning civil and political rights), economic and property rights, and social welfare rights (a category that includes pension and social security issues). The KCC's Constitutional Researchers and Academic Advisers, who possess extensive foreign legal expertise, (148) are also divided among the three subject-matter teams. The clerks assigned to individual justices handle routine cases, especially those that can be dismissed for jurisdictional or justiciability reasons. Difficult or controversial cases are referred to the subject-matter teams for group discussion.
Over half of the regular CROs have studied law overseas, and all are guaranteed the opportunity to do so at government expense after three or four years of service. (149) As of this writing, out of fifty-six regular CROs, twenty-five have studied in the United States as either LL.M. candidates or visiting scholars, while six have studied in Europe (specifically, Germany, France, and Spain). This geographical breakdown reflects a significant shift in emphasis away from Germany toward the United States. A veteran administrator at the KCC reminisced that most of the initial cohort of CROs circa 1988 had studied law in Germany before joining the KCC and came of age at a time when German was widely taught in Korean high schools. By contrast, more recent CROs who arrive at the KCC with the intention of studying in Germany sometimes switch to the United States. The longer history of judicial review in the United States was cited as one factor. Other reasons for the shift toward the United States resemble those given by judges participating in the Korean Supreme Court's study-abroad program, including the opportunity for children to learn English.
Foreign legal study is not limited to enrollment at academic institutions. The KCC also stations CROs directly with foreign courts. Since 2011, the KCC has arranged for CROs to spend six months at the U.S. Supreme Court performing research on specific topics. To be selected for this program, a CRO must have previously studied in the United States as either a visiting scholar or LL.M. candidate. Likewise, the KCC has dispatched CROs to the German Constitutional Court to perform analogous research. Prior work experience can also be a source of foreign legal expertise, as in the case of one CRO who clerked at the South African Constitutional Court before joining the KCC.
Nor does the study of foreign law cease once CROs have returned home. In recent years, the CROs have organized study groups that translate prominent works of foreign legal scholarship into Korean. The resulting translations are distributed internally within the KCC. (150) Other study groups have focused on German and Spanish constitutional law. The KCC also regularly hosts international conferences that present additional opportunities for learning about foreign law. Both speakers at the court's first international symposium in 2012 hailed from Germany, while the December 2013 international symposium on the topic of welfare policy and constitutional adjudication featured prominent scholars from Germany, France, and the United States.
3. Constitutional Researchers (CRs)
As if the foreign legal expertise of the CROs were not enough, the KCC further bolsters its foreign legal research capabilities through the use of both Constitutional Researchers (CRs) and Academic Advisers. The defining characteristic of CRs, as opposed to CROs, is that CRs are required to hold advanced degrees in foreign law and are hired specifically for their expertise in foreign law. Also unlike CROs, CRs are not permanent employees but instead work for the court under one-year contracts that are renewable up to a maximum of five years. As of this writing, a total of five CRs are divided among the three subject-matter teams.
CRs are asked to perform foreign legal research in one of two ways. First, the head of a team may ask a CR to write a memorandum on how a pending case would be decided in a foreign jurisdiction. Second, CRs routinely field requests from CROs for focused research on foreign law in connection with specific cases. However, there is nothing to prevent experienced or knowledgeable CROs from choosing to handle foreign legal research themselves rather than delegate it to a CR.
The educational backgrounds of the CRs reflect the emphasis attached to certain countries. As of this writing, one holds a doctorate in German law, another holds a doctorate in Japanese law, and three were trained in the United States (two J.D. holders and one S.J.D. holder). The two CRs assigned to the civil and political rights team are both U.S.-trained. The social rights team has one U.S.-trained CR and one German-trained CR, while the Japanese-trained CR is attached to the economic and property rights team. Because expertise on particular countries is unevenly allocated across teams, CRs routinely receive requests for help from other teams. CRs are also expected to provide coverage of additional countries according to their language skills. For example, U.S.-trained CRs have been asked to research British law, while the German-trained CR may be tasked with Austrian legal research.
Expertise on specific countries tends to be in greater demand for certain topics than for others. For example, civil and political rights cases were described by a CR as requiring more foreign legal research, "especially into U.S. law." By contrast, U.S. law is viewed as less relevant to social welfare rights cases "because we know the U.S. Constitution doesn't have social rights provisions." (151)
4. Academic Advisers
The KCC also hires three professors in the fields of constitutional and administrative law as "Academic Advisers" on a contractual basis. One Academic Adviser is currently attached to each of the three subject-matter teams. Academic Advisers have part-time contracts and spend two days per week at the KCC participating in team discussion of pending cases and consulting with the justices and head CRO.
The standards of Korean legal academia ensure as a practical matter that the professors who are recruited by the KCC possess extensive comparative legal expertise. Constitutional law professors who lack foreign law degrees are a rare breed in Korea. Historically, it was difficult to find employment as a constitutional law professor in Korea without German legal training or language skills. Among younger generations of scholars, however, training in common law jurisdictions in lieu of Germany has become increasingly common, if not typical.
5. Experts Hired by the Parties
The KCC holds oral argument in only a small handful of highly important or controversial cases, on the order of one or two cases monthly. (152) In these rare cases, both sides to the dispute tend to retain foreign law experts alongside regular counsel. (153) These experts--many of whom are former CROs in private practice or legal academia--submit written opinions then present their opinions at oral argument. (154)
From time to time, court-appointed attorneys may also perform foreign law research, but the amount is likely to be limited. By statute, all litigants before the KCC must be represented by counsel, (155) and the KCC has the power to appoint state-funded attorneys not only for indigent parties, but also whenever it would be in the public interest to do so. (156) Roughly sixty attorneys per year are appointed from a list of eligible attorneys that includes former members of the KCC and former CROs as well as numerous individuals nominated by the Korean Bar Association. (157) Although these attorneys sometimes research foreign law, most are not foreign law experts, (158) and the extremely modest compensation that they receive--a flat rate of roughly $700 per case--further limits the amount of foreign legal research that they can be expected to conduct. (159)
6. The Constitutional Research Institute
In 2011, the Korean legislature authorized the creation of a Constitutional Research Institute (the Hunbeob Jaepan Yongu Won, or CRI) under the auspices of the KCC. The CRI is billed on its website as "a hub for research and education on constitution[s] and constitutional adjudication." (160) The KCC announcement of the CRI's creation hails South Korea for being "the first among some 80 countries having specialized and independent constitutional adjudication bodies to have created a research institution under the authority of a constitutional court." (161) The CRI was established during the tenure of former KCC Chief Justice Kang-Kook Lee, who desired that the KCC become the standard-bearer for constitutional adjudication in Asia and fashion a viable jurisprudential alternative to the traditionally dominant European and American models. (162) The CRI would further these goals, it was argued, by equipping the KCC with the capacity to analyze, critique, and improve upon foreign approaches.
Led by the former dean of a prominent Korean law school, the CRI is housed in a separate building from the KCC and boasts a staff of approximately twenty-five researchers. Most of the CRI's researchers are contract employees limited to a maximum term of five years, and CROs on loan from the KCC serve in supervisory roles. The researchers are divided into four teams: Comparative Constitutional Law, Legal Systems (or Legal Institutions), Basic Rights, and Instruction (or Education). With the exception of the Education Team--which is also the smallest of the four teams--the work of the CRI has thus far emphasized the study of foreign constitutional law in one form or another. (163) Its publications include annual reports on worldwide trends in constitutional adjudication and bimonthly e-mail newsletters that have touched on a wide range of countries from Algeria and Belgium to Peru and Serbia. (164)
On occasion, the CRI does address explicitly domestic issues. For example, the Legal Systems team's responsibilities include the study of constitutional issues surrounding Korean reunification. Even this issue, however, has called for foreign legal research (on the topic of German reunification), and the majority of the research papers generated by the Legal Systems team have focused on various aspects of constitutional justice in other countries, such as the operation of the U.S. Supreme Court's amicus curiae system and France's transition from abstract to concrete judicial review in 2008.
CRI researchers are akin to the KCC's in-house CRs in several respects: they possess advanced degrees in foreign law, and their primary responsibility is foreign legal research. Three-quarters hold doctorates, while the remainder hold a J.D. or LL.M. from the United States. However, the two types of researchers perform complementary functions. Those at the KCC perform comparative research dictated by the adjudication-related demands of specific cases, whereas those at the CRI propose and pursue in-depth comparative research projects, free from the urgency of having to resolve pending cases. In other words, although researchers at both the KCC and CRI perform foreign legal research, those at the CRI do so proactively as opposed to reactively.
To expand its geographic coverage, the CRI also hires Korean-speaking "foreign correspondents" who reside in other countries and either possess legal training or work in the legal profession. Foreign correspondents are responsible for keeping the CRI apprised on a regular basis of constitutional adjudication in their respective countries. A recent vacancy announcement for positions in "Spanish-speaking countries," for example, provides that correspondents will be required to submit bimonthly reports, for which they will be paid approximately $180 each. (165)
E. Level of Interaction with Foreign Courts
In stark contrast to the TCC, the KCC's level of engagement with foreign courts can only be described as extremely high. Its international outreach efforts are made possible by a combination of ambitious goals, considerable resources, and unhindered access to foreign audiences. The KCC boasts publicly of "transferring its experience and knowledge to a number of other countries, including Cambodia, Indonesia, Mongolia, Thailand, and Turkey." (166) The court's heavy commitment to foreign interaction is reflected by the existence of a full-time International Affairs Division with responsibility for organizing international conferences, receiving foreign delegations, and supporting overseas visits by members of the court. (167)
The KCC has capitalized upon its involvement in international organizations to boost its influence and status in a number of ways. In 2006, South Korea became the first and only Asian member of the Venice Commission, the Council of Europe's advisory body on constitutional matters and the practical equivalent of an intergovernmental think tank for promoting constitutionalism and the rule of law. (168) A visit to Europe by the president of the KCC coincided with a desire on the part of the Commission to expand its membership and influence to Asia, and South Korea was soon thereafter invited to join the organization. Within the KCC, the invitation was widely construed as "evidence of global recognition" and acceptance of the KCC as the "epitome of Korean liberal democracy and rule of law." (169) Thus far, South Korea's representatives on the Commission have been drawn from the KCC, (170) and the KCC's own account of its first twenty years brags of its responsibility as the "constitutional court of a country with a flourishing constitutional system" for "assisting newly democratizing countries" via the Venice Commission. (171)
The KCC is not content merely to participate in international judicial organizations, but instead aggressively pursues leadership opportunities. With the encouragement and financial support of the Venice Commission, the KCC established in 2010 the Association of Asian Constitutional Courts (AACC), (172) a regional organization that mirrors the Commission's objectives (173) and counts as its charter members the constitutional courts of Indonesia, Malaysia, Mongolia, the Philippines, Thailand, and Uzbekistan, in addition to the KCC itself. The KCC has made no secret of either its role in the AACC or its desire to enhance Korean influence and status through such initiatives. The AACC's website praises the KCC's "leading role" in launching the organization and characterizes the AACC's first meeting as "a good opportunity for Korea to enhance its international status as chair country that led the AACC's creation and also to promote to the world about [sic] its economic development and judicial advancement." (174) Korean leadership, if not domination, of the AACC is further evidenced by the absence of Japan, Taiwan, and China. Although overtures were made to both the JSC and TCC, the AACC is viewed by the TCC as a thoroughly Korean undertaking, while various members of the JSC professed ignorance of the AACC's existence. More recently--and once again with the endorsement of the Venice Commission--the KCC has also proposed the creation of an Asian Court of Human Rights, which it would play a leading role in organizing. (175)
International conferences are another part of the KCC's strategy for achieving prominence in the judicial world. Membership in the Venice Commission contributed to the selection of South Korea to host the third congress of the World Conference on Constitutional Justice (WCCJ) in September of 2014. (176) The Commission acts as the secretariat for the WCCJ and reportedly favored an Asian venue after the first two meetings in Cape Town and Rio de Janeiro. (177) After broaching the possibility with the KCC, it chose South Korea over Indonesia to host the event. (178) The KCC seized upon this opportunity to promote itself and assert its leadership within the region. Its efforts to impress the foreign judges in attendance included a multimedia campaign featuring Olympic figure skater and beloved national icon Yuna Kim as the official Goodwill Ambassador of the Constitutional Court of Korea. (179) It also capitalized upon the high-profile forum of the WCCJ to unveil its proposal for an Asian Court of Human Rights. (180) As with the AACC, the congress was held without the participation of Japan, Taiwan, or China.
IV. THE TAIWANESE CONSTITUTIONAL COURT
A. Level of Foreign Law Citation
The published opinions of the TCC give the superficial appearance of a court that makes relatively little use of foreign law. Actual citation of foreign law is rare, especially in majority opinions. Of the 644 constitutional decisions rendered from January 1949 to June 2008, only four majority opinions (0.62%) cited foreign judicial precedent, and only eight (1.4%) cited a foreign constitution or statute. (181) Concurring and dissenting opinions are more likely than majority opinions to mention foreign law: out of 554 separate opinions authored over the same period, 74 (13.4%) cited foreign precedent, while 121 (21.8%) cited foreign constitutions or statutes. (182)
The lack of explicit citation of foreign law is attributable at least partly to the conventions of judicial opinion-writing in Taiwan. Traditionally, opinions for the court are concise and do not contain footnotes. As a result, any references to foreign law must take up limited space in the main text of the opinion, which renders them conspicuous and awkward. By contrast, separate opinions follow what one justice described as a "less rigid" form that allows for footnotes. (183) Consequently, separate opinions cite foreign law more frequently than majority opinions, and 80% of those citations appear in footnotes.
B. Level of Foreign Law Usage
The TCC's published opinions barely hint at the full extent to which the court investigates foreign law. For a majority of the justices, comparative constitutional analysis is a virtually automatic practice. Multiple justices indicated that they "consult foreign constitutional materials" in "almost every case" or "ninety-plus percent" of the time. (184) The rare exceptions are cases in which foreign law is obviously unhelpful or irrelevant, such as a separation-of-powers dispute involving the Examination Yuan, one of the five branches of a convoluted governmental structure that is part of Sun-Yat Sen's intellectual legacy and unique to the Republic of China's Constitution. (185)
Even the justices who are relatively infrequent users of foreign law by the standards of the TCC still use it frequently in absolute terms. The most conservative estimate of foreign law usage was given by a law clerk who indicated that the justice for whom he works, a career judge, consults foreign law in one or two out of every six cases. It was widely (but not universally) agreed that justices appointed from the career judiciary tend to be more skeptical of the value and relevance of foreign law than those from academic backgrounds. (186) The justices who were not themselves former academics tended to be more circumspect about the extent to which they consult foreign law, saying only that "it depends on the case," (187) or that they engage in comparative research "only if we think there is relevant foreign law to guide us." (188)
When hired, law clerks are often told that their "primary responsibility" will be comparative legal research. (189) For the small minority of cases that are decided on the merits, comparative legal research is "the most basic thing" that the clerks do and is required "probably 100% of the time." (190) Various clerks also reported that analysis of the TCC's own precedent typically comprises only a "very small portion" of the reports that they prepare for the justices on each case; the "vast majority" of the typical report is foreign legal research. (191) Indeed, foreign constitutional law is taken so seriously that the Taiwanese judiciary itself publishes and sells hardbound Chinese translations of case law from constitutional courts that are considered most influential in Taiwan--namely, the U.S. Supreme Court, the German Bundesverfassungsgericht and, most recently, the ECtHR, but no longer the JSC. (192)
All agreed that consulting foreign constitutional materials is simply not controversial, and that there is no meaningful correlation between a justice's "politics" in a "liberal" versus "conservative" sense and his or her willingness to consider foreign law. As one clerk observed, "Conservatives use foreign law too. They all use it." (193)
C. Jurisdictions Considered
The major objects of comparative study for the TCC are Germany, the United States, Austria, and Japan. However, interest in Japanese constitutional law is in sharp and conspicuous decline, as evidenced by the Taiwanese judiciary's decision to stop publishing translations of JSC decisions. Much as in Korea, officials attributed the turn away from Japanese jurisprudence to the JSC's overwhelming conservatism in the area of constitutional law and consequent failure to produce noteworthy constitutional jurisprudence. (194) By contrast, consideration of ECtHR and Korean jurisprudence remains rare but is on the rise. From time to time, the TCC's clerks survey countries in the English-speaking world other than the United States. Historically, the TCC enjoyed a close relationship with the South African judiciary in particular: South Africa under apartheid was one of the few nations that extended diplomatic recognition to Taiwan and hosted Taiwanese judges on an official basis. (195) Those ties, however, have lapsed, and neither the South African Constitutional Court nor any other common law court apart from the U.S. Supreme Court was described by any of the justices or clerks interviewed as a regular source of inspiration.
There is a strong relationship between the educational backgrounds of the justices and the sources of foreign law that they prefer to cite. Justices with German law degrees account for 87% of citations to German precedent and 60% of citations to German constitutional or statutory provisions. (196) Likewise, justices with some form of American legal training were responsible for 61.7% of citations to American precedent. (197) Moreover, the period during which citations to the U.S. Supreme Court outnumbered citations to the German Bundesverfassungsgericht (1985 to 1994) coincided with the period during which justices educated in the United States outnumbered justices educated in Germany. (198) These correlations are not difficult to explain: in Taiwan as elsewhere, (199) judges are more likely to use what they know than what they do not know.
D. Level of Foreign Law Expertise
The TCC is highly knowledgeable about how courts elsewhere have approached similar issues. If the justices fail to cite or adopt another court's approach to a particular question, they do so out of choice, not out of ignorance. "If it's been covered elsewhere," assured one clerk, "they have considered it. They might not follow [the foreign approach], but they'll consider it." (200) One justice put it bluntly: "We are already fully knowledgeable about foreign law. The problem is translating this knowledge into our social and political context." (201)
For the most part, the justices and their clerks acquire their extensive knowledge of foreign law in traditional ways: they study it in school, they conduct research, and they talk to their colleagues. As of this writing, eleven of the fifteen justices hold either an LL.M. or Ph.D. in law from another country; three have studied law in more than one foreign country. Seven have studied in Germany, four in the United States, two in Japan, and one in mainland China. The fact that a majority of the justices are former law professors contributes to the high level of foreign legal training. (202) In Taiwan--and indeed in most of East Asia, but not the United States--it is common for constitutional law professors to possess a law degree from overseas. (203)
The TCC does not have nearly the same range of resources for conducting foreign legal research as the KCC, but Taiwan's justices make the most of what they have. Each justice is allotted only one law clerk, and there are no shared clerks. The clerks do not serve fixed terms, but most serve for longer than just one year. (204) Many clerks are either concurrently enrolled in domestic Ph.D. programs or preparing to apply for Ph.D. programs overseas. It is up to each justice how to select his or her clerk, but an LL.M. is a de facto hiring requirement, and many of the clerks receive part or all of their graduate-level legal training overseas. In addition, some justices prefer to hire clerks with strength in a particular language, typically either English or German, that will be helpful for research purposes. (205) The clerks, in turn, rely heavily upon one another, thanks in part to the fact that they complement each other with different language skills and foreign legal expertise. Research on foreign law is now conducted "mostly" on the Internet and through online research services such as Westlaw and its German equivalent, Beck Online. (206)
The litigants themselves are of limited use in helping the justices to learn about relevant foreign law. Most petitioners are pro se, (207) and the few lawyers who do appear tend to be inexperienced at making constitutional arguments of any kind, much less comparative ones. (208) However, if the justices feel that they need more information on a particular topic, they may convene an unofficial information-gathering session (shuo ming hui) at which academics will discuss the topic and explain relevant foreign jurisprudence. (209) These sessions serve as a functional substitute for both oral argument (which occurs only in "extreme cases") (210) and amicus curiae briefing (which is not "against the rules" but "not the habit" either) (211) but double as a mechanism for learning about foreign law. Perhaps twice a year, the TCC will also invite foreign scholars, most frequently from Germany, to conduct informational seminars with the justices. (212)
E. Level of Interaction with Foreign Courts
The TCC's opportunities for engagement with foreign courts are severely constrained. In a globalized world, the TCC is a rarity: it has been cut off from regular interaction with other courts. The TCC has become a "natural experiment in judicial isolation" (213) due to mainland China's largely successful efforts to isolate Taiwan from the international community.
The dwindling handful of countries with which Taiwan still enjoys diplomatic relations (214) are the few remaining places in the world where the Justices of the Constitutional Court can expect a red-carpet welcome. South Africa under apartheid was one such country; visiting members of the TCC attended a party in their honor with members of the South African Constitutional Court and were even treated to a tour of the country. (215) Today, the members of the TCC can still look forward to a warm welcome if they visit Panama or Burkina Faso. But such hospitality is disappearing in tandem with Taiwan's diplomatic relations.
Membership in international organizations also poses challenges for the TCC and its justices. A case in point is the Korean-instigated formation of the AACC, discussed above in Section III.E. A member of the KCC invited the TCC to apply for membership, but after some internal discussion, the TCC decided not to apply, partly for fear of the potential "embarrassment" that might result if China were subsequently asked to participate. (216) A number of justices expressed concern that if the TCC were to join first (under its proper name, the "Constitutional Court of the Republic of China") and then China were to join subsequently, China might insist that the TCC be forced to participate under a different name or ejected from the organization entirely--a possibility that they wished to avoid. (217)
Participation in international conferences can be equally problematic. The website for the second congress of the WCCJ held in 2011 in Rio de Janeiro, for example, boasted the sponsorship of the Venice Commission and the participation of no less than eighty-eight constitutional courts and ten regional court associations. (218) Yet no one from the TCC was invited. (219) Nor were the Taiwanese welcome when their Korean neighbors hosted an even larger number of courts at the third congress in 2014. (220) In some cases, Taiwanese judges have literally been turned away at the border, as occurred in 1983 when the International Association of Judges met in Egypt (221) and again in 2004 at the biennial meeting of the International Association of Women Judges held in Uganda. (222)
Efforts by members of the TCC to visit constitutional courts in other countries have also been frustrated by Chinese interference. The justices ordinarily receive a travel budget that enables them to visit foreign courts for research purposes; the choice of destination is left to them, and in a typical year, a group of three or four justices will make use of the summer recess to visit a constitutional court that they find of particular interest or relevance to their work. (223) Some countries, such as Australia, (224) Germany, (225) Hungary, (226) and South Korea (227) were identified as relatively hospitable and trouble-free destinations, at least for a fortunate few justices. Other countries, however, have resorted to face-saving avoidance techniques. The justices may be told, for example, that a visit to France's Conseil constitutionnel requires approval by the Ministry of Foreign Affairs, (228) or that the officials needed to authorize passage through France happen to be on vacation. (229) Similar episodes have occurred in Italy and Spain. (230)
Nor are countries with close historical or political ties to Taiwan necessarily more receptive to Taiwanese visitors. Notwithstanding Japan's primary responsibility for shaping Taiwan's current legal system over five decades of colonial rule, Japanese judges and officials were described as "generally unwilling to meet" with Taiwanese visitors and more concerned with the state of their relations with China than with their former colony. (231) The fact that some Taiwanese judges have studied in Japan and are personally acquainted with Japanese judges means that judge-to-judge contact remains possible, at least on an unofficial, individual basis. (232) However, if official visitors from the TCC are received at the Japanese Supreme Court at all, it is generally by administrative officials or, at best, retired justices. (233)
As difficult as it can be for Taiwan's judges to attend international meetings or visit courts in other countries, playing the part of host can pose even greater challenges. Inviting distinguished judges from other countries to Taiwan is, in the words of one TCC justice, "very hard." (234) The President of the German Bundesverfassungsgericht, for example, indicated with regret that it would be "difficult" for political reasons to accept an invitation from the TCC, (235) and a number of justices reported that their success in inviting German constitutional jurists had been limited to retirees. (236) On this count, the members of the United States Supreme Court have proved braver: Justices O'Connor, Kennedy, and Scalia have all visited the TCC. (237) Even when dealing with the U.S. Supreme Court, however, Taiwan's justices are wary of extending official invitations for fear that they are likely to be rebuffed. (238)
The TCC's ties to the outside world are bolstered to some extent by the fact that the former law professors on the court possess their own international network of academic connections, but the use of these contacts does not always bear fruit. (239) The effectiveness of academic backchannels is limited, moreover, by Chinese efforts to thwart the participation of Taiwanese law professors in foreign conferences and private scholarly organizations, as exemplified by the expulsion of Taiwan's national association of constitutional law professors from the International Association of Constitutional Law in 1999. (240)
Finally, even when there are no political barriers to Taiwanese participation, a small country such as Taiwan is inherently easy for the organizers of international gatherings to overlook or ignore. A case in point is Yale Law School's oft-noted global constitutionalism seminar, now entering its third
decade, which brings together constitutional judges from around the world on an invitation-only basis for closed-door discussions. (241) On only one occasion--in 1997--has a member of the TCC participated, and sources on the TCC could identify only one other justice who has ever been invited.
V. THE HONG KONG COURT OF FINAL APPEAL
A. Level of Foreign Law Citation
Citations to foreign law are a staple of HKCFA opinions. Indeed, the court cites foreign law more often than it cites domestic law. In cases involving constitutional rights, fully three-quarters of its case citations are to foreign and international courts, (242) while one-third of its legislative citations are to foreign legislation. (243)
B. Level of Foreign Law Usage
As its citations demonstrate, the HKCFA routinely gives serious consideration to foreign law. Once discovered, relevant foreign case law is unlikely to be ignored without explanation or acknowledgment. If the HKCFA were to learn of a Canadian appellate decision on point, for example, the justices would consider themselves entirely free to take a different approach but would also feel a "need to explain why." (244) Moreover, any usage of foreign law is likely to be explicitly disclosed.
The differences between common law and civil law courts help to explain why the HKCFA is more transparent in its usage of foreign law than the JSC, KCC, or TCC. First, like other common law courts, the HKCFA issues opinions that are heavily laden with citations and thus offer an inherently more complete picture of the authorities considered. (245) Second, the values of the adversarial system weigh in favor of disclosing foreign law usage. In the words of one justice, "fundamental fairness" requires that the parties have an opportunity to respond to any foreign cases that the court has in mind. (246) Consequently, the HKCFA aims for "full disclosure" of all authorities considered as well as cited. (247) Any foreign authorities that the court considers but ultimately does not cite are supposed to be included in the "list of authorities not cited" that accompanies each decision. (248) This practice of full disclosure does not preclude "the odd footnote reference" to a previously undisclosed foreign decision for the purpose of reinforcing a point already established by other cases. (249) If, however, the substance of the decision relies on a foreign case, the court will "ask the parties if they have anything to say" about it. (250)
A combination of legal and normative factors are highly conducive to judicial comparativism in Hong Kong. From a legal perspective, various provisions of Hong Kong's Basic Law contemplate or require judicial comparativism of some form. Notwithstanding the fact that China is not a common law country, article 84 expressly authorizes Hong Kong courts to "refer to precedents of other common law jurisdictions," (251) while article 8 provides that the "laws previously in force in Hong Kong," including "the common law," "shall be maintained." (252) The Basic Law also obligates Hong Kong courts to apply international human rights law: article 39 constitutionally entrenches the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and "international labour conventions." (253) The content of the ICCPR is further incorporated into domestic law by the (1991) Hong Kong Bill of Rights Ordinance. (254)
At the same time, Hong Kong's status as an autonomous "Special Administrative Region" of China blunts some of the normative criticisms commonly leveled elsewhere against comparativism. First, it makes little sense to object in the context of Hong Kong that judicial comparativism compromises national sovereignty. (255) The whole point of Hong Kong's unique constitutional scheme, which was built upon formal guarantees of autonomy negotiated between China and the United Kingdom, is to insulate Hong Kong from the full exercise of Chinese sovereignty. (256) The authority of the Hong Kong judiciary to make continuing use of foreign and international law is an important ingredient of Hong Kong's precious autonomy. Thus, even assuming arguendo that judicial comparativism compromises national sovereignty, that may be cause for celebration rather than criticism in Hong Kong.
Second, Hong Kong's unusual circumstances also defeat the criticism that comparativism invites judicial activism by expanding the range of materials that can be used to justify the invalidation of laws. (257) Such criticisms rest upon the premise that judicial activism is illicit because it entails lawmaking by unelected judges at the expense of democratic lawmaking processes. (258) In the context of Hong Kong, however, it is difficult to object to judicial invalidation of government action as undemocratic or counter-majoritarian because Hong Kong's legislature and chief executive are not fully elected but instead chosen pursuant to a convoluted formula designed to ensure compliance with Beijing's wishes. (259) The acts of pseudo-elected officials on behalf of an authoritarian regime do not exactly cry out for judicial deference in the name of democracy. Indeed, far from undermining democratic self-governance, vigorous judicial review might be said to operate as a partial substitute for democratic governance by keeping Hong Kong's government within the kinds of legal limits that are prevalent in democratic countries, and by giving the people of Hong Kong a reliable and transparent mechanism for challenging government actions that affect them.
C. Jurisdictions Considered
The HKCFA relies most frequently on case law from the United Kingdom. Roughly half of the case citations found in the HKCFA's constitutional rights jurisprudence are to British cases. (260) Indeed, the HKCFA cites cases from the United Kingdom with much greater frequency than its own case law: whereas (48) % of all citations are to case law from the United Kingdom, only (11) % are to the HKCFA's own jurisprudence. (261) Other popular jurisdictions include Canada and the United States, which together account for (9) % of case citations, (262) and Australia and New Zealand, which collectively lay claim to (7) %. Especially in the case of American case law, however, the fact that cases are cited does not necessarily mean that they are followed. (263)
Although it receives fewer citations than the British courts, the ECtHR may be more influential than the raw citation numbers would suggest. International courts and tribunals such as the ECtHR account for only 8% of the HKCFA's case citations, (264) but scholars and judges alike have observed that the jurisprudence of the ECtHR tends to receive serious consideration from Hong Kong courts. (265)
D. Level of Foreign Law Expertise
Legal and normative factors of the type mentioned in Section V.B help to explain why the HKCFA might be especially willing to use foreign and international law. They do not, however, directly explain the court's high level of foreign law expertise or ability to perform foreign legal research. A variety of institutional factors contribute to the HKCFA's heavy capacity for comparativism as well as its taste for British law in particular. These factors include: (1) the entrenchment of the legal system inherited from the United Kingdom; (2) the direct participation of overseas judges and lawyers in the work of the HKCFA; (3) the extent to which local judges and lawyers are educated in the United Kingdom; and (4) the potential for assistance with foreign legal research through the relatively new system of judicial assistants.
1. The Entrenched Legacy of British Rule
An understanding of the HKCFA's heavy expertise in foreign law, and British law in particular, requires at least some background knowledge of Hong Kong's history and relationship with mainland China. From the mid-1800s until China's resumption of sovereignty in 1997, Hong Kong was a British colony, (266) and the Privy Council in London served accordingly as its highest court. (267) The establishment of the HKCFA in 1997 to replace the Privy Council as Hong Kong's highest court was ordained by the Basic Law, (268) which is technically a statute enacted by the National People's Congress of the People's Republic of China (PRC) but functions as a constitution for the semi-autonomous Hong Kong Special Administrative Region (HKSAR). (269) Both the existence and the content of the Basic Law reflect the terms of the Sino-British Joint Declaration, the treaty under which the United Kingdom returned sovereignty over Hong Kong to China in exchange for guarantees that Hong Kong would continue to enjoy a high degree of autonomy in its internal affairs. (270)
Several provisions of the Basic Law guarantee the continuity of Britain's legal legacy in Hong Kong notwithstanding the resumption of Chinese sovereignty. As previously noted, article 8 preserves "[t]he laws previously in force in Hong Kong" under British colonial rule--namely, "the common law, rules of equity, ordinances, subordinate legislation and customary law," (271) while article 87 expressly obligates courts in Hong Kong to apply that preexisting body of law. (272) Because Hong Kong is now part of China, judicial application of the "laws previously in force in Hong Kong" and "the common law" involves the application of what is now technically foreign law.
Judging from the frequency of citation to British law as well as the accounts given by judges themselves, the Hong Kong judiciary has succeeded at maintaining the continuity of the legal system. (273) It is a mark of this continuity that Hong Kong judges--most of whom received their legal training in the United Kingdom--do not necessarily conceptualize British law as foreign. When asked why Hong Kong courts make such heavy use of foreign law, one justice responded that he did not think of English or Australian cases as foreign law but rather as simply "the common law," a system of principles and reasoning that transcends national boundaries and encompasses Hong Kong. (274) It is necessary to consider English and Australian cases, he explained, because one determines "whether one is right" by "comparing conclusions reached by other judges applying the same system of law in similar cases." (275)
2. Participation of Overseas Judges and Lawyers
Articles 82 and 84 of the Basic Law explicitly authorize the recruitment of judges "from other common law jurisdictions," (276) while article 94 does the same for the legal profession by allowing the licensing of "lawyers from outside Hong Kong to work and practise in the Region." (277) The ostensible rationale for allowing foreign judges to serve on the HKCFA was not to increase the court's aptitude for comparativism, but rather to compensate for the lack of experience with final appellate courts among Hong Kong judges. (278) Whatever the reason for their inclusion, however, one would be hard-pressed to imagine a more efficient and effective way to ensure foreign legal expertise on a court than to appoint foreign judges.
The HKCFA hears appeals in five-judge panels (279) but has historically had only four permanent members, including the Chief Justice. (280) By statute, the fifth justice is selected by the Chief Justice from a roster of local and foreign non-permanent judges. (281) The list of local non-permanent judges consists primarily of retired members of the HKCFA itself, while the list of foreign judges is drawn exclusively "from other common law jurisdictions." (282) It is unnecessary for the foreign judges to possess prior exposure to Hong Kong law; indeed, anyone who possesses prior experience as a lower court judge in Hong Kong is ineligible for appointment as a foreign judge. (283)
In practice, the Chief Justice ordinarily chooses a visiting foreign judge to occupy the last seat. (284) The majority of these foreign judges have hailed from the United Kingdom, with Australia and New Zealand providing the remainder. (285) In all forty-five of the constitutional cases decided by the HKCFA through 2009, the permanent judges of the court were joined by a former or sitting member of the British House of Lords, the Privy Council, or the Australian High Court. (286) Thus far, no Canadians or South Africans have served as visiting judges on the HKCFA. (287) One factor that contributes to the heavy representation of British judges is the United Kingdom's longstanding practice of allowing its best active-duty judges to serve concurrently on overseas courts. (288) An extreme example is Lord Neuberger, who currently serves as a non-permanent justice of the HKCFA as well as the chief justice of the United Kingdom Supreme Court. (289) In practice, however, the availability of active British judges is constrained by their domestic duties. (290)
The tendency of parties to hire prominent foreign counsel in high-stakes constitutional cases further exposes the HKCFA to foreign law. By their own account, the justices "rely heavily on counsel" to bring relevant foreign precedent to their attention. (291) Because the most sought-after human rights lawyers to appear before the HKCFA tend to hail from the United Kingdom, the HKCFA can be assured of learning about British law at a minimum. (292)
3. The Foreign Education of Lawyers and Judges
Until the 1970s, Hong Kong lacked either law schools of its own or a supply of locally trained lawyers. (293) Consequently, most of the lawyers in Hong Kong with sufficient experience to be plausible candidates for appointment to senior positions in the judiciary--including all of the permanent justices of the HKCFA--have studied law in the United Kingdom. Although the passage of time may eventually bring about a predominance of locally trained judges at the most senior levels, this has not yet come to pass.
The fact that all of the permanent members of the HKCFA (and all but one of its non-permanent members) received their legal education outside Hong Kong (294) has helped to ensure a high level of sophistication about foreign law. Even a gradual transition to locally trained judges, however, seems unlikely to significantly diminish the prevalence of foreign legal expertise on the bench given the heavily international character of Hong Kong law schools. For example, the members of the University of Hong Kong Faculty of Law--the oldest of the three local law schools--hail from seventeen different countries, and less than half are ethnically Chinese (a category that includes professors from mainland China and Taiwan as well as Hong Kong). (295)
4. Research Assistance
Because both the justices themselves and the lawyers who appear before them tend to be well versed in foreign law, the HKCFA is not reliant on its clerks for foreign legal expertise. Nevertheless, the clerks--known as judicial assistants--do provide additional support for the comparative enterprise.
The use of law clerks is a relatively new phenomenon in Hong Kong. The HKCFA hired its first judicial assistants roughly a decade ago, and their responsibilities are still evolving. (296) As of this writing, the number of judicial assistants is expanding from five to eight. (297) Judicial assistants serve one-year terms (298) and do not work exclusively for individual justices or even the HKCFA. Instead, they rotate between the HKCFA and the appellate division of the High Court and spend perhaps half of their time at the HKCFA performing legal research. (299)
Unless instructed otherwise, a judicial assistant is likely to approach a research assignment by investigating both British and Hong Kong law. If the relevant law in those jurisdictions is unclear or conflicting, additional
jurisdictions such as Australia or Canada may also be considered. (300) Of the current crop of five, three have foreign law degrees (two from England and one from Australia). However, the committee of judges responsible for hiring the judicial assistants does not place a premium on foreign legal expertise, and the proportion of assistants with foreign training varies considerably from year to year.
E. Level of Interaction with Foreign Courts
When it comes to interaction with foreign judges, the Hong Kong judiciary is a model of transparency and recordkeeping. Its annual report, available in both English and Chinese from its website, lists in chronological order every foreign visitor to the judiciary, ranging from a "14-member delegation of the Judicial Research and Training Institute of the Republic of Korea" to a "10-member delegation led by Mr Sherali Rahmanov, Deputy Chairperson of the Supreme Court of the Republic of Uzbekistan." (301) Likewise, the report lists visits by members of the Hong Kong judiciary to destinations and institutions outside Hong Kong. (302) Several judges indicated that the report's listing of interaction with foreign jurists can be trusted as comprehensive. (303)
The HKCFA's overall level of interaction with foreign courts and judges can fairly be described as high. Although the report does not always distinguish between visits to the judiciary as a whole and visits to the HKCFA in particular, it is clear that one or more members of the HKCFA have at least monthly in-person interaction with some combination of foreign or mainland Chinese jurists, above and beyond what is entailed by the inclusion of a foreign judge on every panel. Hong Kong is also part of what has been described as an "informal circuit of judges" among Commonwealth countries and has become--alongside England, Australia, and New Zealand--a primary exporter of judges, "particularly to smaller jurisdictions in the Caribbean and Pacific regions." (304)
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|Title Annotation:||III. The Koren Constitutional Court through V. The Hing Kong Court of Final Appeal, p. 962-997|
|Author:||Law, David S.|
|Publication:||University of Pennsylvania Law Review|
|Date:||Mar 1, 2015|
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