ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM Constitutional Review in China:An Unaccomplished Project or a Mirage? Guobin Zhu* I.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."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,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 Ph.D (Law),Associate Professor of Law at School of Law of City University of Hong Kong.I am very grateful to my friend Bryan Bachner and my colleague John KS Ho for their valuable comments and suggestions.I want to specially thank Sufolk University Law Review editors for their creative suggestions and meticulous editorial work. 1.BLACK's LAW DICTIONARY 864(8th ed.2004)(defining judicial review). 2.See generally Marbury v.Madison,5 U.S.(1 Cranch)137(1803).This landmark case determined that Article III of the United States Constitution authorizes judicial review
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM Constitutional Review in China: An Unaccomplished Project or a Mirage? Guobin Zhu∗ I. 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 ∗ Ph.D (Law), Associate Professor of Law at School of Law of City University of Hong Kong. I am very grateful to my friend Bryan Bachner and my colleague John KS Ho for their valuable comments and suggestions. I want to specially thank Suffolk University Law Review editors for their creative suggestions and meticulous editorial work. 1. BLACK’S LAW DICTIONARY 864 (8th ed. 2004) (defining judicial review). 2. See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). This landmark case determined that Article III of the United States Constitution authorizes judicial review
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 102 SUFFOLK UNIVERSITY LAW REVIEW [Vol.XLIII:nnn 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 Oi 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. II.CONSTITUTIONAL REVIEW OF LEGISLATION AS FRAMED BY THE CONSTITUTION A.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:"[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[a]administrative,judicial and procuratorial organs of the state are created by the people's congresses to which they are responsible and 3.XIAN FA art.2,S1(1982)(P.R.C.. 4.ldat.2,§2
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 102 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:nnn 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. II. CONSTITUTIONAL REVIEW OF LEGISLATION AS FRAMED BY THE CONSTITUTION A. 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 3. XIAN FA art. 2, § 1 (1982) (P.R.C.). 4. Id. art. 2, § 2
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 2010] CONSTITUTIONAL REVIEW IN CHINA 103 under whose supervision they operate,"and"t]he state organs of the People's Republic of China apply the principle of democratic centralism." 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.'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.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.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. 5.Id.art.3,3. 6.ld.art.3,§1. 7.See XU CHONGDE,XIANFA [CONSTITUTIONAL LAW]108-09 (Renmin University of China Press 1999). 8.Michael W.Dowdle,The Constitutional Development and Operations of the National People's Congress,11 CoLUM.J.ASIAN L.1,1 (1997)(articulating role of NPC in China's political domain). 9.See SUN ZHE,QUANGUO RENDA ZHIDU YANJIU [A Study of the National People's Congress of China]29-30(Law Press China 2004). 10.See ZHU GUOBIN,ZHONGGUO XIANFA YU ZHENGZHI ZHIDU [Constitutional Law and Political
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 2010] CONSTITUTIONAL REVIEW IN CHINA 103 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, decisionmaking power, power of appointment and removal, and power of supervision.10 5. Id. art. 3, § 3. 6. Id. art. 3, § 1. 7. See XU CHONGDE, XIANFA [CONSTITUTIONAL LAW] 108-09 (Renmin University of China Press 1999). 8. Michael W. Dowdle, The Constitutional Development and Operations of the National People’s Congress, 11 COLUM. J. ASIAN L. 1, 1 (1997) (articulating role of NPC in China’s political domain). 9. See SUN ZHE, QUANGUO RENDA ZHIDU YANJIU [A Study of the National People’s Congress of China] 29-30 (Law Press China 2004). 10. See ZHU GUOBIN, ZHONGGUO XIANFA YU ZHENGZHI ZHIDU [Constitutional Law and Political
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 104 SUFFOLK UNIVERSITY LAW REVIEW [Vol.XLIII:nnn It is believed that the NPC's "power to legislate for China is preeminent among the multiple powers that it exercises.As part of its power of supervision,the NPC exercises constitutional review and ensures the compliance of the law with the Constitution. B."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.2 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."4 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.s 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.Some scholars claim that any review must be confined to law, administrative rules and regulations,and local rules and regulations.This is not Institutions of China]118-23 (Law Press China,2d ed.2006);see also CAI DINGJIAN,ZHONGGUO RENMIN DAIBIAO DAHUI ZHIDU [The People's Congress System of China]259(Law Press China,4th ed.2003) 11.See Jiang Jinsong,THE NATIONAL PEOPLE'S CONGRESS OF CHINA 176 (Foreign Language Press 2002)(translation by author). 12.See XIAN FA art.3,3 (1982)(P.R.C.).Article Three states "[all 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."Id. 13.See CAI DINGJIAN,supra note 10,at 373-83. 14.See id.at 259 15.1dat373. 16.XIAN FA art.5,$3(1982)(P.R.C.)
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 104 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:nnn 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. B. “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 Institutions of China] 118-23 (Law Press China, 2d ed. 2006); see also CAI DINGJIAN, ZHONGGUO RENMIN DAIBIAO DAHUI ZHIDU [The People’s Congress System of China] 259 (Law Press China, 4th ed. 2003). 11. See Jiang Jinsong, THE NATIONAL PEOPLE’S CONGRESS OF CHINA 176 (Foreign Language Press 2002) (translation by author). 12. See XIAN FA art. 3, § 3 (1982) (P.R.C.). Article Three states “[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.” Id. 13. See CAI DINGJIAN, supra note 10, at 373-83. 14. See id. at 259. 15. Id. at 373. 16. XIAN FA art. 5, § 3 (1982) (P.R.C.)
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 2010] CONSTITUTIONAL REVIEW IN CHINA 105 true.Based on the 2000 Li fafa [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 7 and regulations by delegated authorities and by special economic zones. 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 procedures.In Chinese civil society,in addition to formal laws,many substantive laws exist.In the broad sense of law,they also constitute part of the legal system in China.Substantive laws are:resolutions and decisions adopted by the NPCSC and local people's congresses and their standing committees,decisions and decrees issued by the Central Military Commission,the State Council,and local people's governments at all levels, and decisions,orders,and directives made by departments of the State Council and departments of local people's governments at all levels.9 The substantive laws also include resolutions,decisions,and directives adopted by the Central Committee of the CPC,and functional departments of the CPC,some of which are jointly adopted by the Central Committee and the State Council.Although these forms of normative instruments are not recognized by the Law on Legislation as formal laws and regulations,they should be taken as part of functional law and real law,because they are made by the specific institutions, repetitively applied to unspecified objects,and have general legal effect.As such,substantive laws should be included when exercising legislative supervision.20 In China,there is a practice of decentralization of law making.Both the State Council and the local people's congresses have the power to make administrative and local rules and regulations.This practice contradicts the theory of the unitary state of China.In my view,it mirrors a de facto legislative federalism.Furthermore,the diversity of categories and forms of laws underline the complexity of the legal system.This gives rise to the necessity of creating a system of legislative review,the purpose of which is to upholdthe uniformity and dignity of the socialist legal system. The system of legislative review develops at two levels and for two purposes:to review law on the basis of constitutionality,and to review other 17.See generally Li fa fa [Law on Legislation](promulgated by the Standing Comm.Nat'l People's Cong,Mar.15,2000,effective July 1,2000)2000 STANDING COMM.NAT'L PEOPLE's CONG.GAZ.112 (P.R.C.). 18.See Qin Aolei Wang Kai,Zhongguo weixian shencha [Constitutional Review in China],in WEIXIAN SHENCHA BULAO YANJIU [A COMPARATIVE STUDY OF CONSTITUTIONAL REVIEW]326(Hu Jingguang ed.,Renmin University of China Press 2006)(translation by author). 19.See id.at 328 20.See id. 21.XIAN FA art.5,S2(1982)(P.R.C)
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 2010] CONSTITUTIONAL REVIEW IN CHINA 105 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 procedures.”18 In Chinese civil society, in addition to formal laws, many substantive laws exist. In the broad sense of law, they also constitute part of the legal system in China. Substantive laws are: resolutions and decisions adopted by the NPCSC and local people’s congresses and their standing committees, decisions and decrees issued by the Central Military Commission, the State Council, and local people’s governments at all levels, and decisions, orders, and directives made by departments of the State Council and departments of local people’s governments at all levels.19 The substantive laws also include resolutions, decisions, and directives adopted by the Central Committee of the CPC, and functional departments of the CPC, some of which are jointly adopted by the Central Committee and the State Council. Although these forms of normative instruments are not recognized by the Law on Legislation as formal laws and regulations, they should be taken as part of functional law and real law, because they are made by the specific institutions, repetitively applied to unspecified objects, and have general legal effect. As such, substantive laws should be included when exercising legislative supervision.20 In China, there is a practice of decentralization of law making. Both the State Council and the local people’s congresses have the power to make administrative and local rules and regulations. This practice contradicts the theory of the unitary state of China. In my view, it mirrors a de facto legislative federalism. Furthermore, the diversity of categories and forms of laws underline the complexity of the legal system. This gives rise to the necessity of creating a system of legislative review, the purpose of which is to uphold “the uniformity and dignity of the socialist legal system.”21 The system of legislative review develops at two levels and for two purposes: to review law on the basis of constitutionality, and to review other 17. See generally Li fa fa [Law on Legislation] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000) 2000 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 112 (P.R.C.). 18. See Qin Aolei & Wang Kai, Zhongguo weixian shencha [Constitutional Review in China], in WEIXIAN SHENCHA BIJIAO YANJIU [A COMPARATIVE STUDY OF CONSTITUTIONAL REVIEW] 326 (Hu Jingguang ed., Renmin University of China Press 2006) (translation by author). 19. See id. at 328. 20. See id. 21. XIAN FA art. 5, § 2 (1982) (P.R.C.)
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 106 SUFFOLK UNIVERSITY LAW REVIEW [Vol.XLIII:nnn forms of law on the basis of legality.The Constitution authorizes the NPCSC to exercise the power of constitutional review by granting the NPCSC the power: to interpret the Constitution and supervise its enforcement...to annul those administrative rules and regulations.decisions or orders of the State Council that contravene the Constitution or the statutes...[and]to annul those local regulations or decisions of the organs of state power of provinces,autonomous regions and municipalities directly under the Central Government that contravene the Constitution,the statutes or the administrative rules and 22 regulations The NPCSC's power to examine whether administrative rules and regulations contravene the Constitution is actually the power of constitutional review C.Review of Constitutionality and Legality Based on the above provisions,the NPCSC exercises the power of review of legality over other rules and regulations as well.As a matter of both law and fact,the Constitution and the Law on Legislation do not make a clear distinction between the review of constitutionality and the review of legality. The Law on Legislation defines the system and process of legislative review as follows: The authorities for amending or canceling a national law,administrative regulation,local decree,autonomous decree or special decree,and administrative or local rule are as follows:[the National People's Congress has the authority to amend or cancel any inappropriate national law enacted by its [s]tanding [clommittee,and to cancel any autonomous decree or special decree approved by its [s]tanding [clommittee in violation of the Constitution or the provision of Paragraph 2 of Article 66 hereof,[t]he [s]tanding [c]ommittee of National People's Congress has the authority to cancel any administrative regulation which contravenes the Constitution or any national law,and to cancel any local decree which contravenes the Constitution or any national law or administrative regulation,and to cancel any autonomous decree or special decree approved by the [s]tanding [clommittee of the People's Congress of any province,autonomous region,or municipality directly under the central government in violation of the Constitution or the provision of Paragraph 2 of Article 66 hereof,[t]he National People's Congress has the authority to amend or cancel any inappropriate administrative rule or local rule;[t]he People's Congress of a province,autonomous region,or municipality directly under the central government and the [s]tanding [c]ommittee thereof has the authority to 22.ldat67
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 106 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:nnn forms of law on the basis of legality. The Constitution authorizes the NPCSC to exercise the power of constitutional review by granting the NPCSC the power: to interpret the Constitution and supervise its enforcement . . . to annul those administrative rules and regulations, decisions or orders of the State Council that contravene the Constitution or the statutes . . . [and] to annul those local regulations or decisions of the organs of state power of provinces, autonomous regions and municipalities directly under the Central Government that contravene the Constitution, the statutes or the administrative rules and regulations.22 The NPCSC’s power to examine whether administrative rules and regulations contravene the Constitution is actually the power of constitutional review. C. Review of Constitutionality and Legality Based on the above provisions, the NPCSC exercises the power of review of legality over other rules and regulations as well. As a matter of both law and fact, the Constitution and the Law on Legislation do not make a clear distinction between the review of constitutionality and the review of legality. The Law on Legislation defines the system and process of legislative review as follows: The authorities for amending or canceling a national law, administrative regulation, local decree, autonomous decree or special decree, and administrative or local rule are as follows: [t]he National People’s Congress has the authority to amend or cancel any inappropriate national law enacted by its [s]tanding [c]ommittee, and to cancel any autonomous decree or special decree approved by its [s]tanding [c]ommittee in violation of the Constitution or the provision of Paragraph 2 of Article 66 hereof; [t]he [s]tanding [c]ommittee of National People’s Congress has the authority to cancel any administrative regulation which contravenes the Constitution or any national law, and to cancel any local decree which contravenes the Constitution or any national law or administrative regulation, and to cancel any autonomous decree or special decree approved by the [s]tanding [c]ommittee of the People’s Congress of any province, autonomous region, or municipality directly under the central government in violation of the Constitution or the provision of Paragraph 2 of Article 66 hereof; [t]he National People’s Congress has the authority to amend or cancel any inappropriate administrative rule or local rule; [t]he People’s Congress of a province, autonomous region, or municipality directly under the central government and the [s]tanding [c]ommittee thereof has the authority to 22. Id. art. 67
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 2010] CONSTITUTIONAL REVIEW IN CHINA 107 amend or cancel any inappropriate local decree enacted by its [s]tanding [c]ommittee or any inappropriate local rule approved by its [s]tanding [clommittee;[t]he [s]tanding [clommittee of a local People's Congress has the authority to cancel any inappropriate rule enacted by the local government, [tJhe People's Government of a province,autonomous region,or municipality directly under the central government has the authority to amend or cancel any inappropriate local rule enacted by a lower level People's Government,[t]he enabling body has the authority to cancel the administrative regulation or local decree which has been enacted by the enabled organ acting beyond its scope of authority or in violation of the objective of the enabling decision,and where necessary,the enabling body may revoke the authorization. The above definitions reveal that the review of constitutionality is conducted by the NPC and the NPCSC,while the review of legality is conducted by the State Council,the local people's congress and its standing committee,and the local people's government. Being the highest organ of state power and the highest legislature of the country,the NPC and NPCSC's power of constitutional review corresponds to the theory of the people's congress.Under the polity of the people's congress, only the NPC and NPCSC can exercise this constitutional power.Chinese scholars Qin Aolei and Wang Kai conclude that the review of constitutionality by the NPC or NPCSC applies to the following categories of law and regulation:law,administrative rules and regulations made by the State Council under Article 89 of the Constitution regarding the functions and powers of the State Council,local governmental rules regarding concrete local administrative matters under Article 107 of the Constitution,local regulations concerning local affairs which need to be regulated locally under Articles 99 and 104 of the Constitution,local regulations concerning matters that have not yet been regulated by national laws or administrative regulations yet,autonomous regulations and specific regulations,and other not yet formalized substantive laws24 Qin and Wang actually expanded the scope of review by including local government rules regarding concrete local and administrative matters under Article 107 of the Constitution,which,in my view,should be subject to the review of legality by the State Council and/or the local people's congress involved. However,I support the inclusion of resolutions,decisions,and directives jointly adopted by the Central Committee of the CPC and the State Council. This category of normative instruments has the substantive authority of law and general legal effect.The review of these instruments certainly constitutes a 23.Li fa fa [Law on Legislation](promulgated by the Standing Comm.Nat'l People's Cong.,Mar.15, 2000,effective July 1,2000)2000 STANDING COMM.NAT'L PEOPLE'S CONG.PEOPLE'S CONG.GAZ.112,arts. 78-80(PR.C). 24.Qin Aolei&Wang Kai,supra note 18,at 329;see XIAN FA arts.89,99,104,107(1994)(P.R.C.)
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 2010] CONSTITUTIONAL REVIEW IN CHINA 107 amend or cancel any inappropriate local decree enacted by its [s]tanding [c]ommittee or any inappropriate local rule approved by its [s]tanding [c]ommittee; [t]he [s]tanding [c]ommittee of a local People’s Congress has the authority to cancel any inappropriate rule enacted by the local government; [t]he People’s Government of a province, autonomous region, or municipality directly under the central government has the authority to amend or cancel any inappropriate local rule enacted by a lower level People’s Government; [t]he enabling body has the authority to cancel the administrative regulation or local decree which has been enacted by the enabled organ acting beyond its scope of authority or in violation of the objective of the enabling decision, and where necessary, the enabling body may revoke the authorization.23 The above definitions reveal that the review of constitutionality is conducted by the NPC and the NPCSC, while the review of legality is conducted by the State Council, the local people’s congress and its standing committee, and the local people’s government. Being the highest organ of state power and the highest legislature of the country, the NPC and NPCSC’s power of constitutional review corresponds to the theory of the people’s congress. Under the polity of the people’s congress, only the NPC and NPCSC can exercise this constitutional power. Chinese scholars Qin Aolei and Wang Kai conclude that the review of constitutionality by the NPC or NPCSC applies to the following categories of law and regulation: law, administrative rules and regulations made by the State Council under Article 89 of the Constitution regarding the functions and powers of the State Council, local governmental rules regarding concrete local administrative matters under Article 107 of the Constitution, local regulations concerning local affairs which need to be regulated locally under Articles 99 and 104 of the Constitution, local regulations concerning matters that have not yet been regulated by national laws or administrative regulations yet, autonomous regulations and specific regulations, and other not yet formalized substantive laws.24 Qin and Wang actually expanded the scope of review by including local government rules regarding concrete local and administrative matters under Article 107 of the Constitution, which, in my view, should be subject to the review of legality by the State Council and/or the local people’s congress involved. However, I support the inclusion of resolutions, decisions, and directives jointly adopted by the Central Committee of the CPC and the State Council. This category of normative instruments has the substantive authority of law and general legal effect. The review of these instruments certainly constitutes a 23. Li fa fa [Law on Legislation] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000) 2000 STANDING COMM. NAT’L PEOPLE’S CONG. PEOPLE’S CONG. GAZ. 112, arts. 78-80 (P.R.C.). 24. Qin Aolei & Wang Kai, supra note 18, at 329; see XIAN FA arts. 89, 99, 104, 107 (1994) (P.R.C.)
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 108 SUFFOLK UNIVERSITY LAW REVIEW [Vol.XLIII:nnn challenge to the current constitutional regime and poses serious problems of feasibility and applicability.The dilemma we are facing is how to understand the constitutional provisions in regard to the role and status of the ruling party. On the one hand,"all political parties and public organizations...in the country must take the Constitution as the basic norm of conduct,and they have the duty to uphold the dignity of the Constitution and ensure its implementation,"but on the other hand,"the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship and the socialist road."25 The question is now whether the CPC and its decisions and acts,in the name of the ruling party,are subject to constitutional scrutiny and review. Finding the answer to it will obviously not be easy D.Hierarchy of Legal Authority as the Basis of Review The people's congresses,at different levels,and the State Council,have distinct roles in reviewing laws,and the review must observe a hierarchical system of legal effect or authority.The Constitution and the Law on Legislation actually have established a set of rules to guide the practice. The system of legal authority is structured as follows:the Constitution has the highest legal authority,and no national law,administrative regulation,local regulation,autonomous regulation and special regulation,or administrative or local rule may contravene the Constitution;national law(made by the NPC and the NPCSC)has higher legal authority than administrative regulations,local decrees and administrative or local rules;administrative regulations(made by the State Council)have higher legal authority than local regulations and administrative or local rules;local regulations(made by the people's congress and its standing committees at the provincial level)have higher legal authority than local rules issued by governments at the same or lower levels;and local rules (enacted by the people's government of a province or autonomous region) have higher legal authority than local rules enacted by the people's government of a"major city"located in its jurisdiction Following the hierarchy of law and the order of legal authority,once a conflict of law arises,the NPC and the local people's congresses shall directly annul the conflicting laws,rules,and regulations,or demand that the enacting authorities annul or alter them.The process of reviewing laws and regulations on the basis of constitutionality and legality,however,is subject to two exceptions derived from the Constitution and the Law on Legislation.First,the people's congresses of national autonomous areas may promulgate autonomous 25.XIAN FA pmbl.(1994)(P.R.C.). 26.See XIAN FA art.5 (1994)(P.R.C.);Li fafa [Law on Legislation](promulgated by the Standing Comm.Nat'I People's Cong.,Mar.15,2000,effective July 1,2000)2000 STANDING COMM.NAT'L PEOPLE's CONG.PEOPLE's CONG.GAZ.112,arts.78-80 (P.R.C.)."Major city,"refers to "a city where the People's Goverment of the province or autonomous region is seated,the city where a special economic zone is located, and any other major city approved by the State Council."Li fafa [Law on Legislation]art.64.4
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 108 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:nnn challenge to the current constitutional regime and poses serious problems of feasibility and applicability. The dilemma we are facing is how to understand the constitutional provisions in regard to the role and status of the ruling party. On the one hand, “all political parties and public organizations . . . in the country must take the Constitution as the basic norm of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation;” but on the other hand, “the Chinese people of all nationalities will continue to adhere to the people’s democratic dictatorship and the socialist road.”25 The question is now whether the CPC and its decisions and acts, in the name of the ruling party, are subject to constitutional scrutiny and review. Finding the answer to it will obviously not be easy. D. Hierarchy of Legal Authority as the Basis of Review The people’s congresses, at different levels, and the State Council, have distinct roles in reviewing laws, and the review must observe a hierarchical system of legal effect or authority. The Constitution and the Law on Legislation actually have established a set of rules to guide the practice. The system of legal authority is structured as follows: the Constitution has the highest legal authority, and no national law, administrative regulation, local regulation, autonomous regulation and special regulation, or administrative or local rule may contravene the Constitution; national law (made by the NPC and the NPCSC) has higher legal authority than administrative regulations, local decrees and administrative or local rules; administrative regulations (made by the State Council) have higher legal authority than local regulations and administrative or local rules; local regulations (made by the people’s congress and its standing committees at the provincial level) have higher legal authority than local rules issued by governments at the same or lower levels; and local rules (enacted by the people’s government of a province or autonomous region) have higher legal authority than local rules enacted by the people’s government of a “major city” located in its jurisdiction.26 Following the hierarchy of law and the order of legal authority, once a conflict of law arises, the NPC and the local people’s congresses shall directly annul the conflicting laws, rules, and regulations, or demand that the enacting authorities annul or alter them. The process of reviewing laws and regulations on the basis of constitutionality and legality, however, is subject to two exceptions derived from the Constitution and the Law on Legislation. First, the people’s congresses of national autonomous areas may promulgate autonomous 25. XIAN FA pmbl. (1994) (P.R.C.). 26. See XIAN FA art. 5 (1994) (P.R.C.); Li fa fa [Law on Legislation] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000) 2000 STANDING COMM. NAT’L PEOPLE’S CONG. PEOPLE’S CONG. GAZ. 112, arts. 78-80 (P.R.C.). “Major city,” refers to “a city where the People’s Government of the province or autonomous region is seated, the city where a special economic zone is located, and any other major city approved by the State Council.” Li fa fa [Law on Legislation] art. 64, § 4
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 2010] CONSTITUTIONAL REVIEW IN CHINA 109 and specific regulations that vary national law,administrative regulations,and local regulations "in...light of the political,economic,and cultural characteristics of the...nationalities in the areas concerned.27 Additionally, "any such variance shall not violate the basic principles thereof,and no variance is allowed in respect of any provision of the Constitution or the Minzu quyu zizhi fa [Law on Regional National Autonomy]and provisions of any other law or administrative regulations which are dedicated to matters concerning national autonomous areas.2 Thus,the inconsistency,if it exists, should not be regarded as contravening constitutional law.Second,the four special economic zones (Shenzhen,Zhuhai,Shantou and Xiamen)enjoy a special power of legislation.Their people's congresses and the standing committees,"in light of the specific situations and actual needs of the jurisdiction,"may enact local regulations provided that they shall not contravene any provision of the Constitution,national law,administrative regulations and the local regulations in force in the province or autonomous region in which the city is located."2 The inconsistency under this condition is permissible because the power of regulation making derives directly from the delegation of power from the NPC,and the legal status of the special economic zones is specially defined by law. III.FILING AND CHECK:NON-JUDICIAL REVIEW OF CONSTITUTIONALITY The review of constitutionality of legislation is conducted through the process of filing and check (bei'an shencha).Basically,filing and check is a longstanding practice which permits the creation of a review process within the NPC system to implement the ambiguous intent of the Constitution. Theoretically,the NPC,and only the NPC,as explained above,has the power to supervise the legislation adopted by the state organs created by it and under it.As a component of accountability,the state organs,including the State Council,the Supreme People's Court,and Supreme People's Procuratorate shall report their work to the NPC. A formal review system to examine the constitutionality and legality of laws and regulations did not exist until October 16,2000,when the meeting of the NPCSC adopted Xingzheng fagui,difangxing fagui,zizhi tiaoli he danxing tiaoli,jingjitequ fagui bei'an shench gongzuo chengxu [Working Procedure Relative to Filing and Check of Administrative Rules and Regulations,Local Regulations,Autonomous Regulations and Specific Regulations,and Regulations of Special Economic Zones](Working Procedure). The adoption of the Working Procedure was the first step towards the 27.XIAN FA art.116(1994)(P.R.C.). 28.Li fafa [Law on Legislation](promulgated by the Standing Comm.Nat'l People's Cong,Mar.15, 2000,effective July 1,2000)2000 STANDING COMM.NAT'L PEOPLE's CONG.GAZ.112,art.66,2 (P.R.C.). 29.ld.at63,§2
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 2010] CONSTITUTIONAL REVIEW IN CHINA 109 and specific regulations that vary national law, administrative regulations, and local regulations “in . . . light of the political, economic, and cultural characteristics of the . . . nationalities in the areas concerned.”27 Additionally, “any such variance shall not violate the basic principles thereof, and no variance is allowed in respect of any provision of the Constitution or the Minzu quyu zizhi fa [Law on Regional National Autonomy] and provisions of any other law or administrative regulations which are dedicated to matters concerning national autonomous areas.”28 Thus, the inconsistency, if it exists, should not be regarded as contravening constitutional law. Second, the four special economic zones (Shenzhen, Zhuhai, Shantou and Xiamen) enjoy a special power of legislation. Their people’s congresses and the standing committees, “in light of the specific situations and actual needs of the jurisdiction,” may enact local regulations provided that they shall not “contravene any provision of the Constitution, national law, administrative regulations and the local regulations in force in the province or autonomous region in which the city is located.”29 The inconsistency under this condition is permissible because the power of regulation making derives directly from the delegation of power from the NPC, and the legal status of the special economic zones is specially defined by law. III. FILING AND CHECK: NON-JUDICIAL REVIEW OF CONSTITUTIONALITY The review of constitutionality of legislation is conducted through the process of filing and check (bei’an shencha). Basically, filing and check is a longstanding practice which permits the creation of a review process within the NPC system to implement the ambiguous intent of the Constitution. Theoretically, the NPC, and only the NPC, as explained above, has the power to supervise the legislation adopted by the state organs created by it and under it. As a component of accountability, the state organs, including the State Council, the Supreme People’s Court, and Supreme People’s Procuratorate shall report their work to the NPC. A formal review system to examine the constitutionality and legality of laws and regulations did not exist until October 16, 2000, when the meeting of the NPCSC adopted Xingzheng fagui, difangxing fagui, zizhi tiaoli he danxing tiaoli, jingjitequ fagui bei’an shench gongzuo chengxu [Working Procedure Relative to Filing and Check of Administrative Rules and Regulations, Local Regulations, Autonomous Regulations and Specific Regulations, and Regulations of Special Economic Zones] (Working Procedure). The adoption of the Working Procedure was the first step towards the 27. XIAN FA art. 116 (1994) (P.R.C.). 28. Li fa fa [Law on Legislation] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000) 2000 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 112, art. 66, § 2 (P.R.C.). 29. Id. art. 63, § 2
ZHU FORMATTED(DO NOT DELETE) 4/12/20102:17PM 110 SUFFOLK UNIVERSITY LAW REVIEW [Vol.XLIII:nnn institution of constitutional review in the current constitutional framework in China.As a matter of fact,the Working Procedure,a product based on accumulated experience,reflected the need to systematize the work of filing and check.To some extent,the symbolic significance of the Working Procedure reaches farther than the actual significance.Indeed,the implementation of the Working Procedure called for the establishment of an institution specifically in charge of filing and check. A.Filing and Check as the Major Process of Review The system of filing and check of administrative and local regulations is an integral part of the legislative system.In particular,the system is the basis as well as the major process of constitutional review.Under this system,bei'an means“for the record”or“for filing,.”often used interchangeably in English, and shencha means“examination,”“investigation”or“audit.”The system's roots exist in the Constitution and Difang geji renmin daibiao dahui he difang geji renmin zhengfu zuzhi fa [Organic Law of Local People's Congresses and Local People's Governments of the People's Republic of Chinal,and fully develop in the Law on Legislation.30 The Constitution provides the foundation of the system by promulgating that:"[t]he people's congresses of provinces and municipalities directly under the Central Government,and their standing committees,may adopt local regulations,which must not contravene the Constitution,the laws,and the administrative rules and regulations,and they shall report such local regulations to the standing committee of the National People's Congress for the record. The Constitution further institutes a system of approval and filing for regulations adopted by competent authorities of national autonomous areas by stating that: People's congresses of national autonomous areas have the power to enact autonomy regulations and specific regulations in the light of the political, economic and cultural characteristics of the nationality or nationalities in the areas concerned.The autonomy regulations and specific regulations of autonomous regions shall be submitted to the standing committee of the National People's Congress for approval before they go into effect.Those of autonomous prefectures and counties shall be submitted to the standing committees of the people's congresses of provinces or autonomous regions for approval before they go into effect,and they shall be reported to the NPCSC for filing. 30.Difang geji renmin daibiao dahui he difang geji renmin zhengfu zuzhi fa [Organic Law] (promulgated by the Standing Comm.Nat'l People's Cong.,July 5,1979,effective Jan.1,1980)1980 STANDING COMM.NAT'L PEOPLE'S CONG.GAZ.art.7(P.R.C.)
ZHU_FORMATTED (DO NOT DELETE) 4/12/2010 2:17 PM 110 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:nnn institution of constitutional review in the current constitutional framework in China. As a matter of fact, the Working Procedure, a product based on accumulated experience, reflected the need to systematize the work of filing and check. To some extent, the symbolic significance of the Working Procedure reaches farther than the actual significance. Indeed, the implementation of the Working Procedure called for the establishment of an institution specifically in charge of filing and check. A. Filing and Check as the Major Process of Review The system of filing and check of administrative and local regulations is an integral part of the legislative system. In particular, the system is the basis as well as the major process of constitutional review. Under this system, bei’an means “for the record” or “for filing,” often used interchangeably in English, and shencha means “examination,” “investigation” or “audit.” The system’s roots exist in the Constitution and Difang geji renmin daibiao dahui he difang geji renmin zhengfu zuzhi fa [Organic Law of Local People’s Congresses and Local People’s Governments of the People’s Republic of China], and fully develop in the Law on Legislation.30 The Constitution provides the foundation of the system by promulgating that: “[t]he people’s congresses of provinces and municipalities directly under the Central Government, and their standing committees, may adopt local regulations, which must not contravene the Constitution, the laws, and the administrative rules and regulations, and they shall report such local regulations to the standing committee of the National People’s Congress for the record. The Constitution further institutes a system of approval and filing for regulations adopted by competent authorities of national autonomous areas by stating that: People’s congresses of national autonomous areas have the power to enact autonomy regulations and specific regulations in the light of the political, economic and cultural characteristics of the nationality or nationalities in the areas concerned. The autonomy regulations and specific regulations of autonomous regions shall be submitted to the standing committee of the National People’s Congress for approval before they go into effect. Those of autonomous prefectures and counties shall be submitted to the standing committees of the people’s congresses of provinces or autonomous regions for approval before they go into effect, and they shall be reported to the NPCSC for filing. 30. Difang geji renmin daibiao dahui he difang geji renmin zhengfu zuzhi fa [Organic Law] (promulgated by the Standing Comm. Nat’l People’s Cong., July 5, 1979, effective Jan. 1, 1980) 1980 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. art. 7 (P.R.C.)
