Comparative Studies on Judicial Review in East and Southeast Asia

By Y. Zhang

The symposium was attended by about 30 people who ensured that during the two days a lively discussion was ensued. (See the list of collaborators and other participants at the end of this report.)

Judicial review in developing countries
Governmental structure greatly determines the form of the judicial review system. The governmental structure of both Indonesia and Malaysia falls under the separation of powers. This allows the basic potential for creating the rule of law, at least in form. However, once the executive, the parliament, and the supreme court are separated and are placed at the same level structurally, the court is only granted power to review legal norms below the rank of a law in Indonesia. In Malaysia the court is not reluctant to review legal norms in practice. The fact that the supreme court is granted the power to review legal norms made by the executive in Indonesia can be appreciated by a comparison with Chinese law.
Other issues concerned whether legal norms made by the executive are for implementing laws or not, and what the process and requirements for delegation of legislation are.
In contrast to Chinese law, in which the executive has inherent legislative power, Malaysia follows the common law tradition, but in practice, the delegated legislative power tends to be comprehensive. This is one of the ways it diverges from following the example of Western countries and creating its own path. However, whatever the method, common to these countries is that legal norms made by parliament or congress are in fact beyond judicial review.
The system of judicial review of administrative actions shows some common features in developing countries. For example, in both Indonesian and Chinese law, the subjects which the injured party can instigate a law suit are limited and the measures for ensuring the implementation of the court's judgement are laid down. This is due to the fact that the rights of the citizen are still limited and administrative agencies which are unused to the tradition of being challenged by judicature tend to repudiate the court's judgement. Moreover, the remedy in both these countries is limited mainly to annulling the administrative act, whereas in Malaysia there are several kinds of remedy available such as deceleration, injunction, and so forth, deriving from the common law tradition. However, the practice seems to be different in England. With reference to the suspension of the enforcement of the administrative act, both Chinese and Indonesian law reject in principle the suspension of the administrative act. However, in the case of China, some administrative actions, such as administrative detention and corrective work are only regarded as sanctions but do not directly concern public interests. These administrative actions also fall within the scope of the lack of suspension of the administrative act. The shortage of finance for courts is also a common problem in developing countries, because the budget for administrative courts or, in the case of China, of ordinary courts, is not independent. In China even the position of the judge is not guaranteed, whereas in Indonesia, Law no 5 of 1986 lays down provisions for ensuring the judges's position. However, a situation which guarantees the judge's position but does not give the court an independent budget may indicate a dilemma. It reflects the fact that even though Indonesia has followed the Dutch style judicial review system, its basic legal environment still needs to be improved.
Apart from the examples of features of the judicial review system, there are also some features in statutory laws which may influence the form of the judicial review system. For example, with reference to public expropriation of land, both in Indonesia and in China, the party whose land is expropriated has to obey the decision made by the government without the consensus of the interested party. The dispute over the amount of compensation is resolved through judicial review. This feature reflects the fact that in these developing countries, the speed of implementation of government projects has priority over protecting citizen's rights and interests, although Indonesia has the system of private property whereas in China land is owned by the state or the public. Another feature of statutory law is that, in China administrative punishments and compulsory measures fall within the sphere of the administrative act and the form of remedy for such actions is administrative litigation after the fact, whereas in Indonesia, administrative decisions made in accordance with the Penal Code or on the Code of Criminal Procedure and other legislation in the field of penal law is subject to jurisdiction by the general courts. In limiting this point, Indonesian law, which is influenced by the Dutch law shows one indication of modernized administrative law compared to the situation still pertaining under Chinese law.
In short, all these features both in the judicial review system and in statutory laws in Indonesia, Malaysia, and China respectively, indicate that the executive tends to be granted strong powers and the procedural law of judicial review is weighted in favour of the administration or the jurisprudence of judicial review tends to be in the favour of the administration. A strong executive is essential for modernizing or developing their economy. This results in citizens' rights being sacrificed or not being given sufficient guarantee.

Judicial review system in developed countries
We compared mainly Japanese law to other Western countries. Separation of state powers, rule of law, democracy and human rights, and so forth, all these basic principles are accepted in Japan. However, the Japanese judicial review system does not work very well. Although it is a compromise between continental law and common law, it is not as well developed as judicial review in the real common law and continental law countries, for example, in the England and Germany. In the case of England, there are five kinds of remedy i.e. mandamus, certiorari, prohibition, injunction and declaration. Also in German law, apart from rescissory litigation, there is litigation for mandatory injunction, litigation for performance, and litigation for declaratory judgment. Whereas in Japanese law, virtually the only available remedy is to introduce litigation to annul the administrative act. The reasons are such that, in the light of the constitutional principle of separation of state powers, the judiciary should exert a passive check on the executive but should not take action to interfere with it; administrative acts are delegated to achieve general public welfare so, broadly speaking, the implementation cannot be suspended in principle. As we discussed during our symposium, England and Germany also adopted the principle of separation of state powers, but this did not become a reason to deny remedies other than rescissory litigation. The system that administrative acts are both legally binding and self-executing comes from German administrative jurisprudence. However, under the present German judicial review system, after a lawsuit is lodged against the administrative act under question, the self-executing effect is automatically suspended. The provisional remedy is based on the idea that the fundamental rights of citizens have to be respected and protected as much as possible. Whereas in Japanese law, the traditional theories still dominate both in administrative jurisprudence and judicial practice.
Apart from the limited forms of remedy available, the difficulty of the burden of proof on the part of the plaintiff, the long time for getting a final judgement and the high costs of instituting and continuing the case, and the like, are also negative sides of Japanese law. In addition to the elements mentioned above, the daily method of administration - administrative guidance - also plays a role in preventing administrative cases from being instigated as lawsuits. Leaving aside the amount of administrative cases in comparison to Germany, the average amount of Japanese administrative cases per year is about one-nineteenth of the Dutch administrative cases brought in 1994, even though the Japanese population is about eight times that of the Netherlands. Without examining the difference of kinds or contents of administrative litigation cases, the simple comparison of number of administrative litigation cases between different countries may lead to misunderstandings. However, in countries where administrative law similarly maintains the tradition of continental law such as Japan and the Netherlands, a comparison of the amount of administrative litigation case in those countries is probably justified.
It is an exaggeration to say that the Japanese judicial review system of administrative action and the actual function are maintained at the same level as that in the developing countries, but in the light of the situation in developing countries, Japanese law and practice cannot exactly be praised. Why did Japan introduce and develop all Western- style principles and values such as separation of state powers, rule of law, democracy, and human rights and so forth, after 1946? Does it still have a praiseworthy judicial review system and what is its function? These problems were analyzed by Professor Fuke in his paper. Namely, Japan had to make a choice to build a strong and wealthy nation in a short period supported by an authoritarian bureaucracy, when it faced the reality of Asia surrounded by the great Western powers in the 19th century. So it did not have a chance to develop modern individualism fully, even after the defeat in the Second World War. Consequently, the eclectic legal culture that often undermines the rights of the citizen for the sake of efficient and powerful state administration was formed and fostered.
The Japanese former administrative law under the Meiji Constitution serves an example to other Asian countries, at least to China which is already following this path. As I discussed in my paper, whatsoever in the process of making laws or administrative regulations and in statutory laws themselves or in administrative litigation procedure law, you can find many similar characteristics in the former Japanese administrative law under Meiji Constitution, even China does not intend that this should be so.

Fundamental differences of judicial review between developing countries and developed countries
China has not adopted the principle of separation of state powers. The judicial review system has not been designed as a tool to ensure the constitutionality and legality of all state powers. The court has not been granted complete judicial power. That is to say that: firstly, the courts are not competent to review legal norms; secondly, the courts are not independent organs financially. For example, the budget of courts at various levels is dependent on the governments or municipalities at various levels.
In the case of Indonesia, the administrative court is only competent to review legal norms below the level of a law. Even if it is based on the Dutch law, in which laws are made by parliament whose members are elected directly by the people, then the process of electing the representatives of the congress and the function of the congress in Indonesia should be an issue of discussion. The function of judicial review depends decisively upon the form of governmental structure. In this connection, however, even if a developing country adopts the form of separation of powers, the executive still tends to be in a relatively supreme position. Reverting to the reasons that the executive is in a relatively supreme position in China, other than the tradition that the legislature, the judicature, and the executive were not separated, this situation also gives as a reason that a strong executive is necessary to modernize the economy. In this point, Japan led the way from the Meiji Restoration till 1945. One can perhaps even say that the Japanese 'Meiji Restoration' is now being repeated in China. During the process of modernizing a country's economy, citizen's rights are undermined for the sake of efficient and powerful state administration. This can be indicated in the process of enactment of legal norms in which the executive is vested with extremely wide, discretionary powers not only in administration but also in legislation. Due to this, rights of citizens may be greatly limited in the process of legislation or the rights of citizens can be violated before the administration has been put into practice, to say nothing of the remedies in the judicial review system being limited.
On this point, the situation in Indonesia and Malaysia is similar to China, although there are many big differences from China, such as the separation of state powers, legal norms below the rank of law can be reviewed by law courts, administrative penalties or quasi-criminal penalties concerning personal freedom cannot be decided by administrative agency, etc. In these countries, development of the economy has priority over the protection of rights of citizens. So protecting citizen's rights has to be developed. This seems to be following a historical pattern. The Japanese experience before 1945 has given us an example of this. If it is true, then it is difficult to find reasons to persuade those countries to protect all kinds of human rights overnight.
In China, both the concept of rights and the actual rights of citizens are limited. Consequently, if there are no rights or few rights, how can the remedies for rights be developed? From this point of view, it is necessary to say that the conditions for protecting citizens' rights cannot be improved merely by changing the procedural law of judicial review. Similarly, in the case of Indonesia and Malaysia, even though their judicial review system has been based on Dutch and the English law respectively, one cannot expect that this functions in the same way as it would in the Netherlands or England and Wales. For example, even though the certiorari, mandamus, and prohibition were introduced to Malaysia in colonial times, these were never used at all, according to the paper presented by Professor Harding. As Professor Fuke pointed out, 'the procedure protection and remedies cannot stand by themselves alone without having anything to do with what rights they are to protect/defend or realize. Any procedure protection or remedies will represent the specific rights to be protected and realized at a specific historical phase'.
The conclusion is that the form of judicial review in developing countries in East and Southeast Asia should not be negated. It has been playing an important role in protecting the rights of citizens in their specific historical, political, and economic condition. The judicial review system in developing countries will be improved gradually by following their own path.
Judicial review is an effective and the ultimate safeguard of citizens rights. However, the judicial review system has inherent defects in protecting citizens' rights. There are also other legal ways of remedy such as administrative objection and the ombudsman or the due process of law which can play a role of decreasing unlawful administrative action or activities and so forth. These systems can remedy the defects of judicial review and should also be developed in East and Southeast Asia.

List of collaborators and other participants
Papers given by collaborators were:
Professor M. Scheltema (Groningen University): Introduction to Comparative Studies on Judicial Review (a lecture)
M. Kobayakawa (Tokyo University): Judicial Review in Japan
T. Fuke (Nagoya University): Judicial Review of Administrative Actions in the UK and Japan - a comparative perspective
Professor S. Ying (Chinese Political Science and Law University): China's Administrative Litigation Procedure Act
Dr. Y. Zhang (IIAS): Judicial Review of Administrative Actions in China and Japan
Dr. Y. Zhang: An Overview of the Sources of Chinese Administrative Law (a reference paper)
Professor A. Weber (Institute for European Law): Judicial Review in Germany
Professor Th. G. Drupsteen (Leiden University): Legal Protection against Public Authorities in the Netherlands
Professor P. E. Lotulung (University of Pakuan Bogor - Indonesia): Judicial Review in Indonesia
Professor A. Harding (London University): The Problems and Characteristics of Judicial Review in Malaysia
Dr. R. Jagtenberg (Erasmus University Rotterdam): The Ombudsman in the Dutch Legal System
Dr. A. Roo (Erasmus University Rotterdam): The Dutch National Ombudsman and His Rotterdam Colleague

These papers will be published as a commercial book by Kluwer Law International, probably in the spring of 1996. The title of the book is Judicial Review of Administrative Actions in East and Southeast Asia - comparison with Western countries.