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.)