In the second semester of the academic year 2013-2014, CESL offered the course of Chinese Constitution and constitutional litigation for LLM in Chinese Law, which was taught by Professor ZHENG Yongliu. The course started from the problem of the value basis under national identity and constitutional issues, followed by the theory of fundamental rights and ended in the discussion of actionability of the constitution. This curriculum was not aiming at imparting memorizing-like knowledge; instead, it’s underlining the core issue and giving a glimpse at the current China via universality.
The teaching method of Chinese Constitution and constitutional litigation curriculum combines instruction with moot court. Three moot court activities have been held so far, topics were covering Hepatitis B Discrimination and “Pengshui Poetry Case" etc. On May 12, 2014, the fourth moot court which was also the only foreign moot court activity --- "The German Constitutional Litigation Moot Court" was held at Changping campus Mingfa Building.
The moot court case was entitled "Aviation Security Act" whose core issue lied in the definition of human dignity, clarifying the scope of protection of human dignity with the "object formula". Through this case, we can observe exactly how German judges solve the extreme ethical issues by the method of jurisprudence.
According to the German Federal Constitutional Court Act, the regulations on the procedure of the constitutional complaint are not very clear, in practice being based primarily on case law, and most domestic researches for the German constitutional litigation are focusing on the substantive areas of law, which leave students with difficult problems of procedural law.
Under the help of the Chinese Co-Dean Prof. LIU Fei, Prof. ZHENG Yongliu and Mr. YU Fei, students explored the procedures of the moot court based on the constitutional complaint (“Verfassungsbeschwerde”) to German Federal Constitutional Court Act.
To make the moot court as close to the real court experience as possible, students had done a lot of work in the form and legal regulations. They referred to the Federal Constitutional Court remote video hearings and decorated the courtroom with the eagle of the national emblem and the national flag of Germany. Students even made up German names for each of the characters in the court and simulated the real court from judges’ garments to the series of rites. In the aspect of the practical content of the case, the students not only spent time reading various research articles by both mainland and Taiwan scholars but also worked on the English translation of pages of the English and German judgments.
With a view to a better performance, students made some changes to the original case: petitioners were narrowed from 6 to only 1; one judge gave a special comment on the case; for cases dealing with an alleged invalidity of a certain law or specific legal regulations, the German Parliament (Bundestag), the Chamber of the German Federal States (Bundesrat) as well as the federal government have right for participating in the proceedings by making declarations and oral arguments, other participants could hand in written comments.
In the original case, Bavaria, Hesse, the Bundeswehrverband (German Service Men Association), Pilot’s Organization and Unabhängige Flugbegleiter Organisation (Flight Attendants Association) handed in written statements. In addition, several organizations made oral presentations and responded to judge’s questions. Each of the students received a piece of handout, including the details of the case, articles of the German Federal Constitutional Court Act, and all the other regulations involved before the hearing.
The moderator started with the introduction of the background of "Aviation Security Act": since the "9 • 11" incident, the international anti-terrorism situation suddenly become tense. Related human rights issues in countering terrorism were becoming increasingly severe and countries were facing the dilemma between counter-terrorism and human rights, national security and human dignity trade-off problems.
January 2003, a 31-year-old man was driving an aircraft circling in Frankfurt, and threatened to crash aircraft into the European Central Bank building. The city was caught in the shadow of terror. After the incident, issues of aviation safety became the hot-spot issues, which raised serious concerns by the public.
In order to prevent "9 • 11" -style terrorist attacks from happening, the German parliament passed a new law called "Aviation Security Act" in 2005. Under this law, the German defense minister has the power to commend fighter-pilots shooting down hijacked civilian aircraft. Six constitutional complaints have been brought before the Federal Constitutional Court, claiming the new act had violated the petitioner's right of living and human dignity which was protected by the Basic Law.
The Moot Court was divided into three sessions. For details, please click here .
Translated by ZHANG Qun, CESL master student from 2013 intake
Photos by PENG Xiao, CESL master student from 2013 intake