The untold leader of judicial review: China’s Constitutional Court (1948–71) and innovative constitutionalism

Abstract

Based on newly opened Chinese diaries of Chiang Kai-shek and presidents of the Judicial Yuan, this article explores China’s Constitutional Court from a socio-historical perspective and contextualizes China’s constitutional development from the mainland to Taiwan by 1971, when the United Nations delegitimized the Chiang Kai-shek regime as a lawful representative of China. This article argues that China’s insistence on legal exceptionalism and the fact that China became a victor state after the two world wars facilitated the institutionalization of the Constitutional Court. Due to the judicial leadership and their effective interactions with the political leader, China’s Constitutional Court survived and led a second wave of global expansion of judicial power around the mid-twentieth century. The survival of China’s Constitutional Court gave life to the oldest constitutional court that endured an authoritarian regime longer than the entire post-1989 era. It therefore provides a unique case for the survival of post-democratization constitutional courts in the twenty-first century. However, China’s Constitutional Court has never been properly accredited, not to mention as a leader of the second wave of judicial review. This article fills the gap and posits the survival of the Constitutional Court as a new thesis in comparative constitutional law. Among others, factors including peaceful constitutional revolution, victor-state’s legal exceptionalism, guardian of the Constitutional Court, strong meritocratic judicial leadership and the judicial personal interactions with charismatic political leadership combine to produce a series of constitutional innovations that have safeguarded the survival of China’s Constitutional Court, and thus contributed to creating an exceptional paradigm of judicial review and global constitutional improvement.