There are great shifts in constitutional thinking taking place today in China among elite Chinese constitutional scholars. Among this group of influential constitutional law scholars, Hu Jintao's concept of scientific development ([TEXT NOT REPRODUCIBLE IN ASCII]) (2) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework. (3) One of the more highly debated issues within Chinese constitutional law circles is constitutional review. The debate centers on the viability of transposing some version of the current parliamentary model of constitutional review into the Chinese constitutional system. (4) Western models of constitutional review seem to insist on the necessity of an independent judiciary with a constitutionally sanctioned supervisory role over administrative and political organs as a condition precedent to constitutional legitimacy. (5) The Chinese constitutional system is criticized for its lack of such a robust system of judicial review. As one commentator recently noted:
As for judicial review powers, Amended Article 5 of the 1982 Constitution reads, "the People's Republic of China governs the country according to law and makes it a socialist country ruled by law," and Article 127 provides that the Supreme People's Court is the highest judicial organ. However, constitutionalism in action and text reduced a potential for a rule of law rubric to a non-rule of law rubric, reduced a potential for legal accountability to political accountability. This left China's judicial system without a positive discursive machinery for judicial review: neither constitutional review or constitutional court, nor decentralized (or diffused) or centralized (or concentrated) constitutional review. (6) For Western observers of Chinese constitutionalism, the conclusion to be drawn is that there is no proper form of constitutional (or judicial) review. The remedy for such a deficiency--and thus for notions of constitutional illegitimacy within the Chinese systems--might be found by implementing any one of a number of possible changes that would produce an appropriate institutional mechanism for the exercise of review authority. That authority would be exercised by some organ of state power that is either housed within the judicial power or otherwise in a properly constituted body within the organs of state power yet separate from the legislative organs of the National People's Congress. (7)
But the notion of judicial review itself veils a certain variation in its application in Western governmental systems. (8) At one extreme is the Anglo-American model, grounded on memorializations of common-law principles of "higher law" notions protected by a self constituting and heavily socialized lawyer-judicial class. (9) This model, powerful and stable, tends to be heavily dependent on the cultural framework of customary law systems, and as a result has found few state adherents outside of states with common-law traditions. At the other extreme is the political model of constitutional review--ranging from the now discarded French system of review of lois by the Constitutional Council (10) to systems in which the legislature or some other political organ is vested with power to interpret the validity of its own actions. Most states, however, have embraced a compromise model of sorts. This model, developed in modern form from the writings of Hans Kelson, (11) posits the creation of a distinct organ of state, the constitutional court, that merges the institutional forms and behavior of judicial institutions with the limited political task of interpreting the constitution generally and the legitimacy of actions by other state organs (including the judicial organs) and private parties. But even this model has engendered criticism over the last century. (12) Still, eminent Western commentators have suggested the possibility of a culturally contextualized form of constitutional review that invests some organ or another of the state apparatus with the power to deploy the constitution against all constitutional actors. (13)
The Chinese analysis of constitutionalism and rule of law in the context of constitutional review mechanisms is interesting both because of its sensitivity to Western academic and political criticism and also because of its ambiguity even as it insists on following the internal logic of the current governance framework within China. (14) Yet these sensitivities and ambiguities create both a tension and a certain blindness to the possibilities for reform within the current Chinese political framework that are well worth exploring. This is particularly the case with respect to judicial review. Western academic and political theory suggests judicial review as a foundation of legitimate constitutionalism, consisting of both a state organ with authority to legitimately interpret the meaning of the constitution (as a system of process and substantive values norms), and determine whether any action by the state apparatus (or others) exceeds their authority to act under that framework.
This short essay draws on the recent work of three Chinese scholars to sketch the contours of the current foundation of one facet of the internal Chinese debate on judicial review. For that purpose it starts with a consideration of a set of papers presented at the same time by three contemporary Chinese scholars, Tong Zhiwei, Dong Heping, and Hu Jinguang. (15) Their papers, representing a recent face of debates about Chinese constitutionalism, were presented at the Conference on Constitutionalism in China in the Past 100 Years and Its Future, organized by the School of Law, City University of Hong Kong Centre for Chinese and Comparative Law and its director Lin Feng. (16) That debate focuses on the institutionalization and bureaucratization of politics within emerging conceptions of Chinese constitutionalism. It suggests the importance of authoritative and legitimate mechanisms for constitutional interpretation within the emerging rule of law framework of Chinese constitutionalism, understood as the framework both for constituting a government (and its organs) and for organizing the political community through the Chinese Communist Party (CCP). This conversation is then contextualized within a broader discussion of the nature of Chinese constitutionalism and is tied to the substantive values of scientific development of rule of law harmonious society within China's political-constitutional system. (17)
Within this broader framework, it is possible to posit that the difficulty of conventional approaches to constitutional review in China is rooted in an insistence on seeking to fit it within the governmental apparatus created under the Chinese Constitution. That approach is misguided to the extent it seeks to situate review in the wrong place within the Chinese constitutional order. Constitutional review is possible within China, and on Chinese terms, but only within the highest organs of power under the Chinese constitutional system. Those organs are not located within the state apparatus, but rather are vested by the Chinese constitution itself in the CCP. This insight provides a foundation for a pragmatic and Chinese basis for resolution of the tensions between the current governance framework in China and the organization of judicial review that permits a continued adherence to current political norms. Specifically, it proposes that for judicial review of constitutional questions to be successfully implemented in China, judicial review ought to be constituted within an organ of political rather than state power within the CCP apparatus. The CCP is the highest organ of political authority within the Chinese constitutional system, charged with the obligation to provide leadership (lingdao) to the state apparatus and the people under the Constitution. Constitutional review would represent an institutionalization of the leadership role of the CCP in a form that would be true to the rule of law principles inscribed in the Chinese Constitution. Though this institutionalization can take any number of forms, the essay suggests a constitutional institution--court or chamber--with French sensibilities, where a written constitution is regarded "as a means to enshrine ... and control political reality." (18) In this way, the tension between the state apparatus, the position of the CCP in governance over the state apparatus, and the need for rule of law based institutionalism might be resolved within a rule of law framework.
More importantly, this approach will institutionalize the actual positions of the CCP as the party in power within a constitutionalist system. Justifying the power of the CCP would fold the current oversight role of the CCP within the constitutional framework of the current constitution, provide an institutional framework for the assertion of the CCP's authority to determine political values, create a mechanism for transparent and regularized political expression, and institutionalize relations between the state apparatus and the CCP as the party in power. At the same time, justifying the political role of the CCP at the constitutional level would not necessarily limit the CCP's political role generally as the party in power.
INTERNAL CHINESE DEBATE: A SNAPSHOT GLIMPSE
There have been some mixed signs over the last decade that Beijing was moving in the direction of making some form of constitutional review a reality. In 2000, the NPC adopted the PRC Legislation Law, which provided citizens the specific right to "propose" that the Standing Committee review administrative regulations and rules that are deemed to conflict with the constitution or national law. (19)
Yet this may suggest more about the foreign academics who watch China, and who cannot conceive of legitimate constitutional systems in the absence of some sort of constitutional review mechanism...