China is Now Grappling With What It Means to Review Its Constitution

One of the most significant outcomes of the Communist Party of China’s 19th congress is the importance given to “constitutionality review”.

The 19th national congress of the Communist Party of China (CPC) was held from October 18-24. In China, governance is based on the division of powers between the CPC – the only ruling party – and the state administration. Every five years, the CPC holds its national congress to re-elect party representatives, effect a leadership transition of the standing committee of its political bureau and set the political agenda for the future under the new leadership. This congress has attracted especially wide global attention because it is seen as aa way of understanding China’s short-term imperatives and long-term reform direction as an emerging global power.

The CPC’s agenda is documented in the comprehensive party report which lays the foundation for further reform and implementation. Of special interest is what the report says about democracy and the rule of law, especially its proposal to strengthen the process of constitutional review, or, as the official English translation of the congress documents calls it, “constitutionality review”.

‘Law-based governance’

Before we move to the constitutionality review, it is necessary to understand Xi Jinping’s political agenda of law-based governance. The vision of political reform under Xi can be summarised as law-based modernised governance under the leadership of the CPC. A central committee of the CPC, talking about some major issues concerning the reform passed by the 18th CPC Congress on November 12, 2013, said that the overall goal of deepening reform was to promote the modernisation of the national governance system and capability. Xi clearly used the concept of “law-based governance” in the 4th plenary session of 18th CPC congress, which passed the resolution of the CPC central committee on ‘Certain Major Issues Concerning Comprehensively Advancing the Law-Based Governance of China’ in October 2014. That resolution offers a wide range of legal reform initiatives for substantiating the idea of “law-based governance”, from emphasising the role of the constitution to making party members and the government accountable to the law in order to promote the independence of the judiciary.

Despite the mixed results thus far, certain serious legal reform measures were put forth in the policy and are being experimentally implemented. These measures are: including establishing circuit courts for making local courts more independent, making administrative litigation easier for holding government agencies or officials accountable to law by revising the Administrative Litigation Law 2014, establishing a court-centred procedure which is expected to change the marginalised role of courts in current jurisdiction especially in criminal cases, and asking all government agencies and party organs at different levels to hire legal advisors for policy-making and law enforcement practice. At the CPC political bureau study on February 23, 2013, Xi promised to try his best to ensure the public is served justice in every individual case. He has made efforts to improve the country’s criminal justice system. Overturning wrongful convictions – such as correcting the Nie Shubin case and Huugjilt case in which two young men were wrongfully given the death penalty two decades ago – has been a key part of that effort.

But no formal mechanism was proposed on how to strengthen constitutional enforcement – critical to the idea of “law-based governance” – in the last five years. Although some progressive efforts for improving legality and constitutionality review of legislative conflicts in the revision of Legislation Law in 2015 have been made, it is still unprecedented that the CPC report formally proposed to strengthen constitutionality review as the mechanism for constitutional enforcement. It also proposes that the CPC is going to establish a steering group for the rule of law in China. In order to understand the significance of this proposal, it is necessary to understand the exploration of constitutionality review under the constitution (1982) in the last two decades.

Looking for constitution enforcement

China has developed four written constitutions and one interim constitutional document since 1949. They are the 1949 Common Programme of Chinese People’s Political Consultative Conference, the 1954 constitution, the 1975 constitution, the 1978 constitution (1978) and the constitution of 1982, the latest. The 1982 constitution has been amended four times – in 1988, 1993, 1999 and 2004. It sets the principle of parliamentary sovereignty in which the National People’s Congress (NPC), as the supreme power of the state, is superior to other powers including the executive and the judiciary. The NPC comprises of more than 3,000 deputies, elected for five years by deputies of the People’s Congress at the provincial level. NPC deputies meet once a year for 10 days to two weeks to exercise constitutional power. The 1982 constitution, like the previous ones, doesn’t set formal adjudication system for constitutional disputes. The judiciary, in the constitution, is a law-applying court which can only check the government through administrative litigation but has no power to review the legality or the constitutionality of laws and regulations.

It was widely agreed that one of the key weaknesses of the 1954 constitution was that it could not stop the tragic Cultural Revolution due to the lack of a constitutional enforcement mechanism. One of the powers of the NPC listed in the 1954 constitution was to supervise its enforcement. However, the NPC was unable to prevent or stop the political turbulence. Hence, constitutional enforcement became a big topic in the drafting process of the 1982 constitution. Some even proposed to introduce the “checks and balances” model of liberal democracy to China. The compromise solution was to grant the power of constitutional interpretation to the NPC’s permanent acting body, the standing committee (NPCSC), and also grant it joint power with the NPC to supervise constitutional enforcement. But the constitution itself doesn’t set formal procedure on how the NPC and the NPCSC should supervise constitutional enforcement.

Further efforts of exploring a constitution enforcement mechanism were done through both processes – top-down and bottom-up. The early top-down focus was to check the government’s power abuse in specific administrative functions by passing the Administrative Litigation Law in 1989. Another top-down effort was to pass the Legislation Law in 2000 to coordinate legislative power across different bodies and to set some rules for solving conflicts among regulations, local Acts, rules, policies and even judicial interpretation.

The judiciary has also joined the efforts of exploring the formal constitutional enforcement mechanism. The 1982 constitution put in place the NPC and the NPCSC for supervising constitution enforcement and the NPCSC for constitution interpretation. The judiciary has no specific role for direct constitution enforcement. But the Supreme People’s Court (SPC) and the local courts have tried to challenge power allocation by the constitution. Due to the constraints of the constitution, the efforts pushed by the judiciary for constitutional enforcement proved unfeasible.

One effort promoted by the SPC was the judicialisation of the constitution. In 2001, in the Qi Yuling case, the SPC directed the Shangdong high court to directly apply the constitution for case adjudication, which was called by liberal scholars and some judges of the SPC as the Marbury V. Madison of China. Due to the controversy raised by the charge of violating the constitution, the SPC annulled this judicial interpretation in 2008.

Another effort has been to conduct constitutionality review in legislative conflicts. In 2003, in a civil case over seed contract, a judge of the intermediate people’s court of Luoyang, Henan Province, invalided the local Act promulgated by the local people’s congress for being in conflict with the People’s Republic of China Seed Law promulgated by the NPCSC. The local people’s congress stated that the court’s decision was unconstitutional because the court had the discretion to choose which legal provision to apply but had no power to invalid local regulation. After many rounds of consultations with scholars, the SPC finally directed lower courts to simply apply the higher-level law to decide the case in future.

From the late 1990s, especially after 2000, a bottom-up push for constitution enforcement got strong momentum. Factors such as the legalisation of the privatisation of the legal profession in 1996, the incentive created by the top-down efforts, the opening of the legal service market for meeting the World Trade Organisation’s requirement and the emerging international legal cooperation programmes focusing on the training of Chinese legal scholars and legal professionals contributed to this constitutional enforcement movement.

Bottom-up efforts have been used by both liberals and conservatives. The Sun Zhigang case is celebrated as a big success by liberals. In 2003, Zhigang, a young college graduate, was mistakenly treated as an illegal domestic migrant and detained in the local custody and repatriation centre, which led to his tragic death. The incident led to widespread public outrage. Three lawyers and scholars sent proposals to the NPCSC for reviewing the constitutionality of the Custody and Repatriation Regulation promulgated by the state council (the central government). The proposal got wide public support. The state council quickly changed the regulation and saved the NPCSC from deciding how to respond to it. But the NPCSC established a new office for reviewing legislative conflicts in 2004. In 2015, the revised Legislation Law granted citizens the right to send review proposals to the NPCSC.

Conservatives have also made efforts for constitutional enforcement. In 2006, scholars such as Gong Xiantian, a law professor from Peking University Law School, with  several hundred other scholars and officials, published a public letter to challenge the new protection measures for citizens, saying the Bill of Property Law violated the principle of socialism and other constitutional provisions. The NCPSC had to launch a wide public discussion to defend the Bill but also invited the conservatives to thank them for reminding people that lawmaking must have constitutional basis.

Different efforts have been made for pushing constitutional enforcement. However, the debate on the institutionalisation of constitutionality review has not been clearly or even positively responded to by the CPC before the 19th Congress. In January 2013, the arbitrary change of leading reform newspaper Southern Weekend’s New Year’s Message calling for constitutionalism by local censorship authorities evidently discouraged liberals’ hope of formalised constitutionality review. Now it seems that the political support may have come. After the 19th CPC congress, the focus will be shifted from “whether China needs a constitutionality review” to “what kind of constitutionality review mechanism China should have”.

What would constitutionality review entail?

Four main models for Chinese constitutionality review have been discussed by Chinese and Western scholars on Chinese legal studies. One is to have case-based constitutionality review through the judiciary, such as in the US and India. The second is to establish a constitutional court such as in Germany and a few other European countries. The third is to establish a constitutional council or constitution review committee under the NPC – a little bit like the French model.  The last is to establish a constitution court within the CPC.

Among the four models, I believe that the first one is the least likely since it will completely change the logic and structure of the constitution. It will also be difficult to establish a constitutional court above the NPC in the logic of parliamentary sovereignty. The fourth model might have a good chance. The argument for it would be that there is no political barrier for this model since the CPC serves as the repository of political power as the only ruling party enshrined in the preamble of the constitution. But the concern would be the effect of the review on the state apparatus, especially on the NPC as the supreme power of the state. After all, except in the preamble, the CPC is not mentioned anywhere in the text of 1982 constitution. The third model has a better chance which has also been the main version explored in the last two decades in China. It certainly has challenges too. For example, if it is within the NPC, it will need to deal with the NPCSC and also the NPC’s laws and decisions. But compared to the other three, the challenges are more easily dealt with through constitutional amendments.

Except the question of where to place the constitutionality review body, there are a large number of equally important issues worthy of debate for ensuring the quality of the process. These include who can send the review request, who can sit in the review committee, what issues shall be under constitutionality review, through what procedure, the effect of the constitutionality review etc. For these issues, I believe Indian efforts and lessons could also be a good reference.

Wenjuan Zhang is associate professor at Jindal Global Law School and executive director at Center for India-China Studies.