Constitutional review in China: an unaccomplished project or a mirage?

• Author: Zhu, Guobin
• Position: Symposium: Constitutional Review in the People's Republic of China

1. INTRODUCTION

   A general perception exists that constitutional review is not a part of modern Chinese jurisprudence. That view is mistaken. The aim of this essay is to show that, while substantial constitutional change has not yet been established, it is arguable that a unique Chinese brand of constitutionalism has taken root and is evolving. A classic understanding of the concept of judicial review is "a court's power to review the actions of other branches or levels of government," including a court's "power to invalidate legislative and executive actions as being unconstitutional." (1) Judicial review has become an established part of contemporary constitutionalism in Western jurisprudence.

   Constitutional review, another expression of judicial review closely associated with the discussion of constitutional law, is the power of courts to examine whether legislation enacted by the parliament or acts of the executive authorities are consistent with the written constitution and, within this query, to determine their validity. This system commands a primordial condition: courts receive jurisdiction through the constitution and use that jurisdiction to determine constitutionality. Needless to say, constitutional review is an innovation derived from the American constitutional case Marbury v. Madison, (2) which has become the standard for democratic constitution-making, and a reference for other countries looking to modernize their constitutional regime.

   If the above definition were applied literally to China, any constitutional scholar must conclude without any ambiguity that constitutional review does not exist in China. First, the current Constitution, adopted in 1982, does not contain any provisions for constitutional review. Second, Chinese courts are not given, expressly or implicitly, the ability to exercise such a review power. Instead, courts in China merely apply the law, without the power of interpreting the law in adjudicating cases. Chinese courts performing judicial review of constitutionality is far from being a part of Chinese jurisprudence.

   A more holistic approach to constitutional review is emerging in Chinese legal academic debate that contemplates contemporary public law in a manner different from the classic approach. The difference lies in the understanding of the functions of constitutional review, which, in my view, should be: (i) the assurance that legislation complies with the Constitution, and (ii) the resolution of disputes among different branches of government. The assurance of constitutional compliance of legislation seems to be the first and original meaning of constitutional review. The second function of constitutional review--the resolution of disputes among different branches of government--is being widely acknowledged as an equally important mechanism in both mature and emerging democracies. The role of arbitrator is in most cases played by courts, but it can also be played by the national legislature, as is provided in the Chinese Constitution.

   Considering the Chinese Constitution and the second element of constitutional review, we can conclude that constitutional review exists in China, as the Constitution establishes a system of constitutional review with the power of review vesting in the legislature instead of courts.

   This essay will first trace how this system of constitutional review has been set up and evaluate its efficiency. Second, the essay will explore the development of constitutional review by courts in China by examining the Qi Yuling case and relevant judicial interpretations. Finally, the essay will discuss the theoretical development of the establishment of constitutional review in China, as well as comment on the major ideas and suggestions related to it.

2. CONSTITUTIONAL REVIEW OF LEGISLATION AS FRAMED BY THE CONSTITUTION

   1. The People's Congress System and Constitutionalism

      The fundamental Chinese political system is framed by the Constitution as a people's congress system. According to the Constitution, this system has the following salient features: "[a]ll power in the People's Republic of China belongs to the people;" (3) "[t]he organs through which the people exercise state power are the National People's Congress and the local people's congresses at different levels;" (4) "[a]ll administrative, judicial and procuratorial organs of the state are created by the people's congresses to which they are responsible and under whose supervision they operate;" (5) and "[t]he state organs of the People's Republic of China apply the principle of democratic centralism." (6)

      Under the people's congress system, the National People's Congress (NPC) is the highest organ of state power, and its permanent body is the Standing Committee of the National People's Congress (NPCSC). Together, the NPC and the NPCSC carry out the legislative power of the state. These provisions qualify the constitutional status of the NPC (and thus, the NPCSC) and define it as the sole, highest organ of power. This confirms that all state power is actually centralized in one body with no separation of powers. This regime of highly centralized power is believed to have been rooted in the previous governmental practices under the Communist Party of China (CPC) in the 1930's and 1940's. (7) This centralized system is radically different from the conventional Western conceptualization of separation of powers. Though it looks like a parliamentary system, considering that the NPC is the highest legislature in China, the people's congress system is still substantively different, as the creation of the judicial and procuratorial organs is completely subject to the decision of the NPC and, probably most importantly, the NPC is not organized through universal suffrage.

      The NPC, while generally acknowledged as a "rubber-stamp," does play a substantial role in the modern decision-making and law-making processes. Although one scholar asserts that "[i]t is no longer a secret that the National People's Congress ... has recently shed its 'rubber-stamp' character and emerged as an independent and influential force in China's political arena," the main role of the NPC is essentially limited to the implementation of CPC polices by translating them into laws or regulations. (8) The claim that the NPC has become an "independent" force is exaggerated. The four constitutional amendments since 1988 have confirmed this position. The dynamics of the relationship between the Party and the State can only be understood in this "Party-State" framework. It is arguable, however, that the NPC could realize a "soft-landing" for constitutionalism in China by reforming the people's congress system and transforming itself into a full-range and all-around legislative body. (9) In theory, the NPC enjoys total state power, as it is a totalitarian type body. As the highest organ of state power, the NPC exercises a full range of powers, which can be categorized into legislative power, decision-making power, power of appointment and removal, and power of supervision. (10) It is believed that the NPC's "power to legislate for China is preeminent among the multiple powers that it exercises." (11) As part of its power of supervision, the NPC exercises constitutional review and ensures the compliance of the law with the Constitution.

   2. "Legislative Supervision" as Constitutional Review: Its Foundation and Rules

      The NPC and the people's congresses both exercise supervisory power. Supervisory power is a mandatory power of examination, investigation, oversight, rectification, and review. The NPC and the people's congresses exercise this power at all levels, and therefore over the organs created by them and their activities. The purpose of supervisory power is to fully guarantee the implementation of national laws, prevent the executive and judicial branches of government from abusing power, and protect people's fundamental rights and interests. (12) As the highest organ of power as well as the highest legislature, the NPC exercises its power of supervision over legislative acts, implementation of law, executive actions, the judiciary, the state personnel, the military, and foreign affairs. (13)

      The NPC's supervisory power over laws and regulations is often called "legislative supervision." This refers to the supervisory activities of "the people's congresses and their standing committees to examine whether laws, regulations and other normative instruments violate the Constitution, laws, and resolutions and decisions of the people's congresses." (14) The purpose of legislative supervision is to ensure the following: "that general laws are consistent with the Constitution and basic laws," that regulations are consistent with the laws, that all normative instruments are consistent with the laws, that the people's congresses make all resolutions and decisions, and that the unity of the State legal system is maintained. (15)

      The Constitution provides for the foundation of legislative supervision, in other words, constitutional review of legislation, when it states that "no law or administrative or local rules and regulations shall contravene the Constitution." (16) Some scholars claim that any review must be confined to law, administrative rules and regulations, and local rules and regulations. This is not true. Based on the 2000 Li fa fa [Law on Legislation], legislation encompasses seven categories: law, administrative rules and regulations, local rules and regulations, rules of departments and local governments, autonomous regulations and specific regulations, military rules and regulations, and rules and regulations by delegated authorities and by special economic zones. (17)

      Scholars regard these seven forms of law as formal laws that refer to "the normative legal instruments taking statutory forms, which are made by the specific institutions of the State in exercising legislative power, and in accordance with legal...