© The Author 2015. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected]
Constitutional evolution through
legislation: The quiet transformation
of China’s Constitution
Yan Lin*
Over the past three decades, China’s Constitution has experienced a dramatic and fundamental
transition that is beyond conventional knowledge. Legislation has overtaken both constitutional
amendment and interpretation and has been instrumental in helping the Constitution evolve over
time. Through statute-making, both the National People’s Congress and its Standing Committee
have enriched and changed the definition of both vertical and horizontal governmental relations,
as well as created new rules and principles for interregional relations. As a result, the overall state
power structure has become more decentralized, diverse and balanced. Such an evolutional route
is by no means a unique Chinese story, but rather reflects a common theme for constitutional
changes in the world. While this relatively flexible model seems realistic for China, a sustainable
constitutional structure demands an operational constitutional review system.
1. Introduction
In 2012, China’s Constitution celebrated its thirtieth anniversary. China has remained
relatively stable and achieved remarkable economic development over the past three
decades, which stands in sharp contrast to the first half of the Republic’s history.
Stability and prosperity wouldn’t have been possible without institutional support,
including a sustainable constitutional order. While we celebrate the Constitution’s
survival and steady development,1 this is a genuine opportunity to explain the model
of its growth and understand how China has transformed.
* Associate Professor, Shanghai Jiao Tong University KoGuan Law School. Email: [email protected].
The author thanks Tom Ginsburg, Jacques deLisle, Keith Hand, Hualin FU, Neysun Mahboubi, and
Matthias Vanhullebus for their thoughtful comments and feedback on drafts of the article.
1
Selected works on the constitutional development, see Tao-Tai Hsia, The Constitution of Red China, 4 Am.
J. Com. L. 425 (1955); Franklin W. Houn, Communist China’s New Constitution, 8 Western Pol. Quart.
199 (1955); G. P. Deshpande, China’s New Constitution, 10 Econ. Pol. Weekly 143 (1975); Jerome Alan
Cohen, China’s Changing Constitution, 76 China Quart. 794 (1978); Byron Weng, Some Key Aspects of
the 1982 Draft of Constitution of the People’s Republic of China, 91 China Quart. 492 (1982); Tony Saich,
The Fourth Constitution of the People’s Republic of China, 9 Rev. Socialist L. 113 (1983); M. Ulric Killion,
China’s Amended Constitution: Quest for Liberty and Independent Judicial Review, 4 Wash. U. Global Stud.
L. Rev. 43 (2005)
I•CON (2015), Vol. 13 No. 1, 61–89doi:10.1093/icon/mov001
62
I•CON 13 (2015), 61–89
To accomplish this goal, this article tries to answer the following questions: First, is
the text of the Constitution and its thirty-one amendments the only source of Chinese
constitutional law? Second, and a closely related question, when describing the development of the current Constitution, is the text and its amendments the only evidence
we should rely on? Third, how has the Constitution evolved to meet the ever-changing
needs of the society apart from textual changes? Fourth, how have Chinese people
implemented constitutional rules and principles in the absence of a comprehensive
and effective constitutional review system?
In the literature on China’s constitutional evolution, there exist at least three
approaches. The first, dominant approach relies almost exclusively on constitutional
amendments. This orthodoxy focuses on the background and the contents of the
amendments, with a special emphasis on the Communist Party’s role in upgrading the
constitutional façade. Almost all constitutional law textbooks in China follow this line
of approach, and often offer positive appraisals.2 Due to its concentration on the relation between the ruling party’s policies and the textual changes of the Constitution,
this approach fails to apprehend significant impacts that several statutes have generated on the existing constitutional structure.
The second group of scholars treat the existence of a functional constitutional
review system as a necessity for a meaningful constitutional order and hence argues
that China has done little to enforce its constitution.3 As influential as the first group’s
optimism, these scholars’ pessimistic mood is equally widespread. Although such a
perception catches the most obvious loophole in the Chinese constitutional order, it
nevertheless overlooks alternative implementation venues and therefore possibly
overstates the existing problems.
There is still a third group which has noticed the legislative works of both the
National People’s Congress (NPC) and its Standing Committee (NPCSC) and identified
the institutional progress produced by individual statutes.4 This smaller group is to be
See Xianfa [Constitutional Law] 91–98 (Xu Chongde & Hu Jinguang ed., 4th ed. 2009); Xianfa Xue
[Constitutional Law] 73–74 (Zhang Qianfan ed., 2004); Hu Jinguang & Han Dayuan, Zhongguo Xianfa
[Constitution of P. R. China] 56–59 (2d ed. 2007).
3
See William C. Jones, The Constitution of the People’s Republic of China, 63 Wash. U. L. Quart. 707, 712 (1985);
Donald Clark, Puzzling Observations in Chinese Law: When Is a Riddle Just a Mistake?, in Understanding China’s Legal
System 105 (C. Stephen Hsu ed., 2003). Although realizing the lack of judicial enforcement is a big setback for
China, some still claim that “an unenforced constitution may still be useful.” See Zhang Qianfan, A Constitution
without Constitutionalism? The Paths of Constitutional Developments in China, 8 Int’l J. Const. L. 950 (2010).
For a different yet more positive assessment, see Randall Peerenboom, Law and Development of
Constitutional Democracy: Is China a Problem Case?, 603 Annals 192 (2006). Meanwhile, Prof. Hand has
recently pointed out that there has been too much misplaced optimism and excessive pessimism and offer
some alternative views on how the Constitution is implemented. See Keith Hand, Resolving Constitutional
Disputes in Contemporary China, 7 U. Pa. E. Asia L. Rev. 51 (2012).
4
For a more comprehensive work with this paradigm, see Han Dayuan ed., Gongfa De Zhidu Bianqian [The
Institutional Evolution of Public Law], chs. 1–4 (2009).
In the meantime, some scholars have elaborated specific statutes’ impact on the Constitutional structure. See Henry R. Zheng, China’s New Civil Law, 34 Am. J. Comp. L. 669 (1986); Xixin Wang, Administrative
Procedure Reforms in China’s Rule of Law Context, 12 Colum. J. Asian L. 251, 259 (1999); Oliver Q. C.
Zhong, Dawn of a New Constitutional Era or Opportunity Wasted? An Intellectual Reappraisal of China’s AntiMonopoly Law, 24 Colum. J. Asian L. 87, 103 (2010).
2
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
63
credited with detecting an alternative enforcement channel, but its major problem is
that it usually only realizes the importance of a piece of legislation on the development
of constitutional norms in an abstract sense but fails to identify those developments,5
or only articulates the constitutional significance of a specific statute in a detailed way,
and thus fails to catch the bigger picture which would show the legislation’s constitutional impacts in a more systematic way.
This article will join the third group’s efforts, but will present a more comprehensive
landscape. It will use a series of statutes to demonstrate their structural significance
in creating new constitutional institutions and in clarifying constitutional principles,
and will present a more complete road map of constitutional evolution. Therefore,
Section 2 will first provide an overview of the legislative history of constitutionmaking and of the text of the Constitutional, present an evolutional perception of
constitutional development, and introduce a constitutional development framework
consisting of multiple channels, including constitutional amendments, constitutional
interpretation, and legislation. Section 3 will illustrate the importance of several statutes in reshaping a more reasonable and balanced governmental structure. Section
4 will try to explain the institutional advantage that legislation has over constitutional amendments and constitutional interpretations. In the final section, this article
argues that the evolutional route presented is not particular to China, but reflects a
common theme of constitutional changes around the globe. Moreover, the article also
calls for building an effective constitutional review system in order to maintain a sustainable constitutional order.
2. The original setting: an unfinished constitution and the
multiple ways to continue it
The legislative history unmistakably shows that both the Constitutional Revision
Committee (CRC) and the NPCSC have designated the current Constitution as an
unfinished document and allowed it to be continued over time.
Peng Zhen, who chaired the CRC, emphatically pointed out that the submitted constitutional draft was just a result of reachable political compromises and was unable to
take into account all interests or institutional designs. He said that:
There are other suggestions. Although they are good, the implementation condition is not
ready, or they have not been tested in practice, or they’d better be written into other laws or
documents than the Constitution. Therefore, we have not put them into the Constitution.6
In this situation, the standard for deciding the final version was not whether a given
rule was good enough, but whether the rule was necessary and likely to be enforced.
According to the legislative history, the CRC had prepared dozens of drafts before a
5
6
See Thomas E. Kellogg, The Constitution in the Courtroom: Constitutional Development and Civil Litigation
in China, in Chinese Justice: Civil Dispute Resolution in Contemporary China (Margaret Y. K. Woo & Mary
E. Gallagher eds., 2011).
Peng Zhen, Guanyu Zhonghua Renmin Gongheguo Xianfa Xiugai Caoan De Baogao [The Report on the Draft
of the Constitutional Amendments of the People’s Republic of China], Nov. 26, 1982.
64
I•CON 13 (2015), 61–89
more mature version was published to solicit opinions from the public; and the final
text was the result of screening out several million suggestions and comments.7 Bolder
designs such as creating a constitutional review committee were set aside in order to
win essential support from the conservative wing to pass the Constitution.8
For ideas to be excluded from the original text, however, does not mean that they
will be abandoned for good. In fact, the Constitution is not closed to other institutional
arrangements. On the contrary, it actually has reserved the following three9 parallel procedural channels allowing other designs to be absorbed into the text: constitutional amendment, constitutional interpretation, and authorized legislation.10
Constitutional amendments are proposed by the NPCSC or the deputies of the NPC,
and are adopted by the NPC.11 Adopting an amendment is a widely recognized and
legitimate way of altering the Constitution.12 An amendment may change,13 supplement,14 or expand15 the meaning of a constitutional clause. As one scholar puts it:
“amending the constitution in a piecemeal fashion has been the dominant route for
constitutional evolution since the current Constitution took effect.”16
Interpreting the Constitution is another way of improving the supreme law. Article
67 of the Constitution exclusively endows the NPCSC with this mission. Unlike in the
case of the constitutional amendment process, however, the Constitution fails to provide necessary and operational guidelines for issuing interpretations. Critical rules
such as “who is responsible for submitting interpretation request, how to interpret,
what kind of procedure shall be followed and what kind of legal effect an interpretation shall have,”17 have not been furnished.
Li Jibin, Xu Chongde: Xianxing Xianfa Shi Minzhu Lifa De Dianfan [Xu Chongde Praises the Current
Constitution as A Model of Open Legislation], Fazhi Ribao [Legal Daily] (Dec. 5, 2012).
8
Liu Songshan, Taidong Weixing De Xianfa Weiyuanhui [The Beset Plan of Creating A Constitutional Review
Committee], in 5 Zhengfa Luntan [Tribune of Political Science and Law] 94 (2010).
9
One author pointed out: “The Constitution basically provides two ways of changing its text, namely
constitutional interpretation and constitutional amendment.” See Miao Lianying, Xianzheng Jianshe Yu
Jianshexing De Xiuxian [Constitutionalism Construction and Amending the Constitution in a Constructive
Way], 5 Faxuejia [Jurist] 18 (2003).
Meanwhile, some scholars argue that there are actually six ways to develop constitutional norms,
including constitutional amendment, constitutional interpretation, constitutional precedent, ordinary citizens’ constitutional consciousness, law-making, and constitutional review. See Jiang Bikun &
Liu Maolin, Gaige Yu Zhongguo Xianfa Fazhan [Reform and the Development of China’s Constitution], 2
Fashang Yanjiu [Law and Economics Studies] 19 (1994).
10
Some term it as “constitutional delegation”. See Han Dayuan & Wang Guisong, Zhongguo Xianfa Wenben
Zhong Falü De Hanyi [What Does Law Mean within the Text of Chinese Constitution?], 2 Fa Xue [Legal
Science] 42 (2005).
11
Constitution of P. R. China, art. 64 (1982).
12
See Miao Lianying, Xianfa Jieshi De Gongneng Yuanze Jiqi Zhongguo Tujing [The Function, Principle and
Chinese Scenario of Constitutional Interpretation], 6 Falü Kexue [Law Science] 34 (2004).
13
E.g., the Second Amendment lifts the ban on transfer of land use right.
14
E.g., the Thirteenth Amendment sets a new goal for the nation, that is “ruling the country in accordance
with the law and building a socialist country of law.”
15
E.g., the First, Sixteenth, and Twenty-first Amendments have increasingly upheld the status of the private economy.
16
Miao, supra note 9.
17
Wang Zhenmin, Zhongguo Weixian Shencha Zhidu [China’s Constitutional Review System] 285 (2004).
7
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
65
In contrast to the two ways described above, the constitutionality of developing
the constitution through legislation has rarely been recognized. This, in fact, is a misconception about the Constitution, which does includes many clauses delegating the
development of a specific constitutional rule in a more detailed and operational way
to both the NPC and NPCSC. For instance, Article 31 authorizes the NPC to design
concrete institutions and rules for the Special Administrative Regions by law (falü);
whereas Article 59 provides that the distribution of the NPC’s membership and the
means of choosing its deputies shall be decided by law, etc.18 Therefore, both the NPC
and its Standing Committee not only have the authority, but are obliged to create and
perfect those mentioned rules by adopting statutes19 in order to clarify or expand the
meaning of a given constitutional mandate. Furthermore, in spite of lacking a clear
constitutional delegation, both the NPC and NPCSC have constantly declared in their
statutes that these laws had been “made in accordance to the Constitution,”20 in the
hope of strengthening their legitimacy.
3. Developing the constitution through legislation
As mentioned above, under the current orthodox literature, constitutional amendments have become the most visible and dominant method of constitutional development. The thirty-one amendments have seemingly become a nearly exclusive platform
for developing the Constitution. It is undisputed that amendments have brought fundamental changes to the Constitution and helped it to keep up with the changing circumstances. Nevertheless, it should be also noted that other constitutional rules and
principles have been created and upgraded by statutes adopted by both the NPC and
its Standing Committee. Through legislation, vertical and horizontal intergovernmental relationships, as well as the relationship between local governments, have been
reshaped significantly. As a result, institutions such as people’s congresses have also
been substantially remodeled.21
Basically, there exist three ways to develop the Constitution through legislation.
First, statutes can develop rules pronounced in the Constitution in a more concrete and
comprehensive way. There are many statutes falling into this category. For instance,
both the Hong Kong Basic Law and the Macau Basic Law dramatically upgrade Article
Other delegation clauses include: Constitution of P. R. China, arts. 78, 86, 96(2) and (3), 97(2), 111,
124(3), and 130(3) (1982).
19
See Han & Wang, supra note 10.
20
Disputes exist on whether the NPC or the NPCSC can make such an announcement. See Liang Huixing,
Buyi Guiding Yiju Xianfa Zhiding Benfa [It Is Inappropriate to State “This Law Is Promulgated in Accordance
with the Constitution”], Shehui Kexue Bao [Social Sciences] (Nov. 16, 2006), at p. 1; Tong Zhiwei, Lifa Genju
Xianfa Wuke Feiyi [No Questions about Legislating in Accordance to the Constitution], 1 Zhongguo Faxue [China
Legal Science] 19 (2007).
21
This, however, doesn’t mean that statutes have done nothing to upgrade the basic rights. As demonstrated in this article, some institutional changes were realized by invoking constitutional rights. For
instance, the legitimacy of establishing the administrative litigation system was founded on the people’s
right to petition to the government. Due to the length limit, this article will focus primarily on governmental powers. The author will display the statutory realization of basic rights with a separate paper.
18
66
I•CON 13 (2015), 61–89
31 of the Constitution and provides a basic governance framework for the two special
administrative regions.22
Second, statutes can elaborate general principles in the Constitution in a more concrete way by taking into account changing circumstances and contemporary social
values. To achieve this goal, statutes can either affirmatively incorporate fresh character or negatively rule out a foreign element. In this respect, both the Lawyer’s Law
and the Law on Supervision have illuminated the principle of judicial independence.23
Third, laws can create rules and institutions absent in the Constitution. As we
will see, several statutes effectively fill in the blanks left by the original constitutional
text and significantly enlarge the body of constitutional norms. The Administrative
Litigation Law is an example.24
The following sections will provide an overview of several important statutes to
reflect this particular constitutional evolution model and demonstrate its institutional
significances.
3.1. The horizontal distribution of state powers
As is well known, the distribution of powers among different governmental branches
is carried out under the people’s congresses framework in China, but “not based on
any separation of powers principle in the tradition of Montesquieu.”25 This framework
is a state power system with its power base residing in people’s congresses: both the
executive and judicial branches are created by the people’s congress, and the latter
has the power to check against the other two branches, but not vice versa. From the
perspective of power distribution, this is a “one-way,” top-down power relationship,
departing largely from the “checks and balances” model where the three branches
are normally designed to be co-equal and can keep check on each other. The people’s
congress framework contains no clear rules on how the different branches can check
each other. All these gaps have been filled by statutes.
(a) Creating the administrative litigation system
The People’s Court Organic Law of 1979 limits the courts’ adjudicatory function to two
types of cases: civil and criminal. Article 3 of the law provides that “[t]he task of the people’s
courts is to try criminal and civil cases and, through judicial activities, to punish all criminals
and settle civil disputes, so as to safeguard the system of dictatorship of the proletariat . . . .”
Obviously, lawmakers at that time did not permit the court to take on administrative cases.
Nevertheless, it should be mentioned that the Civil Procedure Law (provisional version),26 which was adopted two months prior to the Constitution, recognized that both
See infra Section 3.1(b).
Constitution of P. R. China, art. 3 (1982).
24
See infra Section 1.1.
25
Jerome A. Cohen, Reforming China’s Civil Procedure: Judging the Courts, 45 Am. J. Comp. L. 793, 795 (1997).
26
Between the late 1970s and the early 1980s, there were several provisional statutes. These statutes were
adopted by following the same legislative procedures and had a binding authority as other statutes. The
only difference is that provisional version statutes were usually designated to function for a shorter period
of time before they were upgraded by a more comprehensive statute.
22
23
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
67
the NPC and its Standing Committee could authorize the courts to handle administrative cases by following civil procedures.27
The Constitution only broadly defines the people’s courts as a “judicial state organ”
and fails to articulate what types of cases the courts can take. On the one hand, it does
not expressly counter the judicial functions set by the Organic Law of 1979. On the
other hand, it does not expand the judicial power by following the Civil Procedure Law
(provisional version).
Meanwhile, the Constitution does, to some extent, define the relationship between
the judiciary and the executive. First, in order to ensure judiciary independence, it prohibits the executive branch from intervening into adjudicatory activities.28 Second, it
also demands that the court, the procuratorate, and the police department, while handling criminal cases, “. . . divide their functions, each taking responsibility for its own
work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of the law.”29 Nevertheless, the Constitution does not
openly authorize the courts to affirmatively supervise the executive on law enforcement affairs by reviewing administrative cases.
Beyond that, the Constitution also provides two methods of guaranteeing that the
executive branch duly fulfills its duties. First, the primary supervisory function rests
on the people’s congresses. For instance, the NPCSC has the authority to supervise the
work of the State Council and to nullify its regulations that violate the Constitution
and laws.30 Second, citizens are also empowered to exercise some forms of supervision. In this regard, Article 27 proclaims that, all state organs and state workers shall
“accept supervision from the People.” Article 41 continues and provides that citizens
have the right “to criticize and make suggestions regarding any state organ or functionary” and “to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty.”
Again, the courts have not been assigned any supervisory role in this regard.
Therefore, the creation and full establishment of the administrative litigation
system was entirely materialized by statutes. The seed of the administrative litigation system was first planted by the NPCSC. In 1983, when drafting the Maritime
Transportation Safety Law, the NPCSC successfully overcame the boycott from the
Ministry of Transportation31 and eventually wrote into the law a clause empowering private parties to bring suits against the maritime transportation department in
Civil Procedure Law (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 8, 1982, effective
Oct. 1, 1982), art. 3(2) provides: “This Law applies to the disposition of administrative cases accepted by
the People’s Court prescribed by law.”
28
Constitution of P. R. China, art. 126 (1982).
29
Id., art. 135.
30
Id., art. 67(6) and (7).
31
In order to urge the heads of the Ministry to fully accept the institution of administrative litigation, the
NPCSC devoted a significant amount of its political capital. See Zhao Lei, Xianzhi gongquanli lanyong shi sanshinian lifa de da sixiang zhuanfang yuan quanguo renda fagongwei fuzhuren Zhang Chunsheng [Restricting the
Abuse of Public Power Has been the Major Thought behind 30 Years’ Legislative Experiences: Exclusive
Interview with Former Deputy Director of the Legal Affairs Office of the NPCSC, Zhang ChunSheng],
Nanfang Zhoumo [Southern Weekly] (July 24, 2008), at A08.
27
68
I•CON 13 (2015), 61–89
people’s courts.32 The constitutional authority that the lawmakers cited for that particular move is Article 41.33
In 1989, the NPC built a comprehensive administrative litigation system. Reporting
to the whole session of the NPC, Vice Chair Wang Hanbin reiterated that the constitutional foundation of the law is Article 41 of the Constitution. Although Article
41 is more of a rights protection entitlement, the Administrative Litigation Act treats
“ensuring the correct and prompt handling of administrative cases by the people’s
courts”34 as its paramount goal. Obviously, the lawmakers realized that the establishment of the administrative litigation system is a readjustment of the interrelationship
between the judiciary and the executive, which the Constitution has not covered.
From its inception, the administrative litigation system has gradually gained strength.
In 1989, the whole court system adjudicated in 9,334 at first instance, and the plaintiff’s
winning rate was about 20 percent,35 while in 2011, the caseload in the same category
jumped to 13,600.36 In 2008, the head of the administrative division of the Supreme
People’s Court mentioned that the plaintiff’s winning rate was about 30 percent.37 It is fair
to say that the system has become a main venue to redress the grievances of the people.
(b) Clarifying and upholding the principle of judicial independence
As mentioned above, the 1982 Constitution provides some forms of guarantee for judicial independence, especially by emphasizing the judiciary’s freedom from “intervention from the administrative organs, social entities and individuals.”38 In contrast with
the 1954 Constitution39 and the two Basic Laws for Special Administrative Regions,40
such a guarantee is limited, conditional, and far from absolute.41
Maritime Transportation Safety Law (promulgated by the Standing Comm. Nat’l People’s Cong., Sept. 2,
1983, effective Jan. 1, 1984), art. 45 (China).
33
See Zhao, supra note 31.
34
Administrative Litigation Law (promulgated by the Nat’l People’s Cong., Apr. 4, 1989, effective Oct. 1,
1990), art. 1 (China).
35
See Annual Work Report of the Supreme People’s Court (1990).
36
See Annual Work Report of the Supreme People’s Court (2012).
37
See Revising the Administrative Litigation Law and the State Compensation Law, News Q.Q. (Mar. 11, 2008),
available at http://news.qq.com/a/20080311/006051_2.htm.
38
Constitution of P. R. China, art. 126 (1982).
39
Constitution of China (promulgated by the Nat’l People’s Cong., Sept. 20, 1954, effective Sept. 20, 1954),
art. 78 announced that “[t]he people’s courts administer justice independently and are subject only to the
law.”
40
Basic Law (promulgated by the Nat’l People’s Cong., Apr. 4, 1990, effective July 1, 1997), art. 85 (H.K.)
states that, the courts of Hong Kong “shall exercise judicial power independently, free from any interference.” Similarly, art. 83 of Basic Law (promulgated by the Nat’l People’s Cong., Mar. 31, 1993, effective
Dec. 20, 1999), art. 83 (Mac.) provides that, the courts of Macau “shall exercise judicial power independently. They shall be subordinated to nothing but law and shall not be subject to any interference.”
41
As Wang Chenguang put it, “art. 126 of the Constitution does not exclude people’s congresses,” although
this “does not imply that people’s congresses can intervene into the courts’ work. . . . But it does mean people’s congresses may launch checks against the court in accordance with the law.” See Wang Chenguang,
Lun Fayuan Yifa Duli Shenpanquan He Renda Dui Fayuan Gean Jianduquan De Chongtu Jiqi Tiaozheng Jizhi [On
the Conflict between Court’s Independent Adjudicatory Power and the People’s Congresses’ Individual Case
Supervision Power and the Conflict Resolution Mechanism], 1 Fa Xue [Legal Science] 18, 19 (1999). See also
Xin Chunying, What Kind of Judicial Power Does China Need?, 1 Int’l J. Const. L. 58, 69 (2003).
32
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
69
Based on the text, both people’s congresses and people’s procuratorates have the
authority to initiate supervision over the courts. On the one hand, the people’s procuratorate, in its capacity as a supervisory organ for law enforcement, “shall . . . counteract
against” the people’s court in “handling criminal cases,” in order “to ensure that (the latter) enforce the law correctly and effectively.”42 At the same time, the Criminal Procedure
Law of 1979 also promulgated a series of rules to guide the people’s procuratorate on
how to conduct oversight against the court. On the other hand, people’s congresses and
their standing committees have the authority to appoint and remove judges,43 and can
also supervise the courts’ work.44 In addition, the ruling party and its sub-branches can
intervene in the judicial activities in some forms.45
Unlike the procuratorates’ clearly defined supervisory role, rules on how people’s
congresses and their standing committee shall check the courts had long been
awaited. It was both the Lawyers’ Law and the Law on Supervision which fill the gap
and redefine the meaning of judicial independence. The significance of the Lawyers’
Law is that it creates a structural insulator between the people’s congress and the
court to prevent the members of the congress’s standing committee from intervening
in the judicial process. The establishment of this principle was eventually realized after
rounds of negotiations and compromises.
In this respect, the original draft of the Lawyers’ Law of 1996 only stated that
“the incumbent personnel of the people’s courts, the people’s procuratorates and the
police departments shall not work as a part-time lawyer.” During the deliberation,
“some members of the NPCSC and local governments proposed that, given the character and function of lawyering, all governmental officials shall not be a part-time
lawyer.”46 Therefore, Article 13 of the law provides that “the incumbent personnel of
state organs shall not be a part-time lawyer” and that “lawyers who are a member of
every level people’s congress’s standing committee shall not practice law during their
term.” For some reason, these rules were taken away from the text in the original draft
of amendments to the law in 2007.47 Nevertheless, the Legal Committee of the NPC
strongly criticized the move and submitted the following reasoning of opposition:
It is legally inappropriate for lawyers to act as a member of the standing committee and participate in the committee’s supervision over the executive, and judiciary and procuratorate
branches on the one hand, and as a litigator providing legal service and receiving payment
Constitution of P. R. China, art. 135 (1982).
See Criminal Procedure Law (promulgated by the Nat’l People’s Cong., July 1, 1979, effective Jan. 1,
1980), arts. 62, § 7 and 67, § 11.
44
See id., art. 67, § 6.
45
As pointed out by some scholars, in practice, the ruling party as well its subordinates may from time to
time exercise some form of supervision over the court’s work. This reality, therefore, shall be taken into
account when assessing judicial independence. See Cai Dingjian, Xianfa Jingjie [Annotated Constitution of
P. R. China] 403 (2004). See also Xin, supra note 41; Cohen, supra note 25, at 797–798.
46
Quanguo Renda Falü Weiyuanhui Guanyu Zhonghua Renmin Gongheguo Lvshifa Caoan Shenyi Jieguo De Huibao
[The NPC Legal Affairs Committee’s Report on the Review Results of the Draft of the Lawyers Law of P. R.
China] (May 7, 1996).
47
Quanguo Renda Falü Weiyuanhui Guanyu Zhonghua Renmin Gongheguo Lvshifa Xiuding Caoan Xiugai
Qingkuang De Huibao [The NPC Legal Affairs Committee’s Report on the Revision Situation of the Lawyers
Law (revision draft for the second read) of P. R. China] (Aug. 24, 2007).
42
43
70
I•CON 13 (2015), 61–89
from the clients on the other. That will cause problems in practice. In the mean time, they enjoy
unequal professional footings as opposed to other lawyers.48
Thus, the Legal Committee proposed resuming the 1996 version of rules and suggested that rules on “the work payment of lawyers who are a member of the standing
committee during the period of prohibition be promulgated respectively.”49 However,
some members of the NPCSC still believed that it was too restrictive to prevent standing committee members from practicing law. They argued that, “in order to prevent
lawyers from using their identity as a standing committee member to interfere with
the fair adjudication of cases, it is essential to bar them from taking part in litigation.
But [we] can’t prohibit them from engaging in non-litigation businesses such as legal
consultation service.”50 Eventually, the newly revised Lawyers’ Law reads as follows:
“lawyers who are a member of every level of people’s congress standing committee
shall not engage in litigation representation or legal defense.”51
The Supervision Law’s major contribution to strengthening judicial independence
is its exclusion of the so-called “individual case supervision,” in which people’s congresses and their standing committees can question both the judicial procedures and
final judgments and force the courts to correct their decisions believed to be violating
the law. From the late 1980s, local people’s congresses began to conduct supervision
over individual cases. Then, in 1990s, many local people’s congresses and standing
committees promulgated a series of local regulations on how to normalize and supervise the courts’ work, including rules on how to conduct individual case supervision.52
Meanwhile, both the NPC and the NPCSC started to intensify supervision over the
Supreme People’s Court in late 1990s.53 While planning for comprehensive rules on
judicial supervision, the NPCSC was facing a specific dilemma, namely whether or
not it should legalize the already widespread practice of individual case supervision.
This was also an issue that had constantly challenged the lawmakers during this
entire legislative process. In the early 1990s, rules on individual case supervision had
already appeared in the very first draft of the Supervision Law.54 Also, in 1999, the
NPCSC planned to deal with the issue by a specific resolution on judicial supervision.55
Id.
Id.
50
Quanguo Renda Falü Weiyuanhui Guanyu Zhonghua Renmin Gongheguo Lvshifa Xiuding Caoan Erci ShenyiGao
Shenyi Jieguo De Baogao [The NPC Legal Affairs Committee’s Report on the Review Results of the Lawyers’
Law (revision draft for the second read) of P. R. China] (Oct. 24, 2007).
51
Lawyers’ Law (revised by the Standing Comm. Nat’l People’s Cong., Oct. 28, 2007, effective Jun. 1, 2008),
art. 11(2).
52
See Cai Dingjian, Renda Gean Jiandu de Jiben Qingkuang [The Overview of the People’s Congresses’
Individual Cases Supervision], 3 Renda Yanjiu [People’s Congresses Studies] 4 (2004). See also Xin, supra
note 41, at 69–71.
53
For instance, the two legislative bodies constantly conducted law implementation inspections related
to judicial affairs and asked the Supreme People’s Court to report on specific judicial issues during this
period.
54
Li Peng, Lifa Yu Jiandu [Lawmaking and Oversight] 530 (2006).
55
See Li Peng Weiyuanzhang Zai Dijiujie Quanguo Renmin Daibiao Dahui Dierci Huiyi Bimushi Shang De Jianghua
[Chair Li Peng’s Address in the Closing Session of the Second Convention of the 9th National People’s
Congress] (March 15, 1999).
48
49
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
71
And several later drafts of the Supervision Law also included rules on individual case
supervision.56 In the early 2000s, some members of the NPCSC began to question
this arrangement, arguing that such a supervisory method in fact allows the standing
committee to “act as a judge” and therefore “violates the Constitution by breaking the
institutional boundary between the people’s congress and the court mandated by the
highest law.”57 The opposition was so fierce that the NPCSC eventually excluded the
individual case supervision mechanism and the latter made the following explanation:
According to the Constitution and other related laws, both the court and the procuratorate exercise their authority independently. The people’s congress is the state’s representative
organ, not a court or a procuratorate. The standing committee’s supervision over “the two
institutions (liangyuan)” mainly includes listening to and reviewing the specific work reports,
law enforcement supervision, and other forms. The purpose of this supervision is to urge the
judicial organs to improve internal supervision and resolve those common issues that concern
the public the most in the two institutions’ work . . . . With regard to . . . issues related to the
law or cases, the local people’s congresses have used them as a channel to launch the internal
supervision mechanism within the two institutions and have already generated positive effects.
That . . . does not mean the people’s congress standing committee collectively exercises supervisory duty towards “the two institutions” work . . . Thus the Supervision Law may not rule on
that issue.58
The exclusion and denial of the individual case supervision from the Supervision Law
indeed further clarified the boundary between the people’s congress and the court
and consolidated the principle of judicial independence that the Constitution failed
to articulate.
3.2. The vertical distribution of state powers
Significantly departing from an influential observation that China maintains a market-preserving federalism without “strong, explicit constitutional foundations,”59 the
E.g., art. 58 of the draft submitted to the NPC Standing Committee provides that:
56
A special committee of the People’s Congress may decide to initially inquire about and verify with
the People’s Court or People’s Procuratorate on a concerned case. If necessary, the special committee
may submit it to the Chairs’ Meeting of the People’s Congress, which may decide to ask the Court or
Procuratorate to resolve the case and report to the Chairs’ Meeting on the result of the case. After review,
if the special committee is not satisfied with the result of the case, it may report to the Chairs’ Meeting and
propose to it the suggestion on how to deal with the situation.
See Quanguo Renda Falü Weiyuanhui Guanyu Zhonghua Renmin Gongheguo Quanguo Renmin Daibiao Dahui
He Difang Geji Renmin Daibiao Dahui JianduFa Caoan Xiugai Qingkuang De Huibao [The NPC Legal Affairs
Committee’s Report on the Revision Situation of the Draft of the Supervision Law of the NPC and Local
People’s Congresses (revision draft for the second read) of P. R. China] (Aug. 23, 2004).
57
Id. For an equally strong criticism from an American perspective, see Paul Gewirtz, Legislative Supervision
of Court Cases, Paper presented at International Symposium on Judicial Fairness and Supervision, Beijing,
China (Jan. 10–12, 2004), available at http://www.law.yale.edu/documents/pdf/ENGLISH.pdf.
58
Quanguo Renda Falü Weiyuanhui Guanyu Zhonghua Renmin Gongheguo Quanguo Renmin Daibiao Dahui
He Difang Geji Renmin Daibiao Dahui JianduFa Caoan Xiugai Qingkuang De Huibao [The NPC Legal Affairs
Committee’s Report on the Revision Situation of the Draft of the Supervision Law of the NPC and Local
People’s Congresses (revision draft for the second read) of P. R. China] (June 24, 2006).
59
Gabriella Montinola, Yingyi Qian & Barry R. Weingast, Federalism, Chinese Style: The Political Basis for
Economic Success in China, 48 World Pol. 50, 60 (1995).
72
I•CON 13 (2015), 61–89
Constitution does contain a set of rules and principles addressing the relationship
between the central government and local governments and the relationship between
higher-level governments and their lower counterparts. For instance, Article 3(4) provides that “[t]he division of functions and powers between the central and local state
organs is guided by the principle of giving full play to the initiative and enthusiasm
of the local authorities under the unified leadership of the central authorities.” This
has become the most important principle guiding the center–periphery relationship.
Besides, ensuring the hierarchical order of the legislative norms is also an important
principle.60 In addition, the Constitution also outlines rules on the relationship between
higher- and lower-level legislative, executive, and judicial branches.61 Nevertheless,
these rules are inadequate to address concrete issues on center-periphery relations.
For example, the distribution of legislative authority has not been fully accomplished
by the Constitution. The basic framework on relations between the central government and two autonomous regions, Hong Kong and Macau, is largely absent from
the constitutional text. Instead, these two issues have been resolved by legislative acts.
(a) Balancing the legislative power between the central and provincial levels
Unlike many constitutions that devote several clauses or even a chapter to allocate the
legislative power, the Chinese Constitution seems out of fashion. With regard to legislative power allocation, what the Constitution has done is simply establish a hierarchical pyramid of different levels of norms, with the constitutional norms at the top. Both
the NPC and the NPCSC are authorized to exercise the national legislative power62
with the former having the authority to amend the Constitution and enact and revise
basic laws,63 and the latter to interpret the Constitution and laws, enact other laws,
and revise the basic laws to a limited extent when the NPC is not in session.64 The State
Council is entrusted with promulgating administrative regulations in accordance
with the Constitution and laws.65 Provincial people’s congresses and their standing
committees can adopt local regulations if they don’t violate the Constitution, laws and
administrative regulations.66 People’s congresses in ethnic autonomous regions have
the authority to adopt regulations on the exercise of autonomy and other separate
regulations.67 At the same time, the Constitution provides a supervisory framework to
sustain the legislative hierarchy.68
The Constitution does also specifically assign legislative matters to a given lawmaker. For instance, the NPC has the authority to enact and revise “basic laws on
criminal, civil affairs, state organs and other affairs”;69 “the systems to be instituted
Constitution of P. R. China, art. 5(2) (1982).
See, e.g., id., arts. 67(8), 89(4), 127(2), 132(2).
62
Id., art. 58.
63
Id., art. 62(1) and (3).
64
Id., art. 67(1)–(4).
65
Id., art. 89(1).
66
Id., art. 100.
67
Id., art. 116.
68
See id., arts. 5(3), 62(11), and 67(7)–(8).
69
Id., art. 62(3).
60
61
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
73
in special administrative regions shall be prescribed by law enacted by the National
People’s Congress in the light of the specific conditions”;70 etc. These rules, however,
offer far from a comprehensive system on legislative jurisdictions among various lawmakers. In other words, the questions of what the NPC and it Standing Committee
should rule on, what kind of affairs the State Council’s administrative regulations
should cover, and what local regulations should deal with, etc, were not articulated
systematically in the Constitution.
Without a clearly-drawn jurisdictional system, the legislative hierarchy is impossible to maintain, since lower level lawmakers can also legislate on matters covered by
or to be covered by their higher counterparts. If this structural loophole is allowed to
last, widespread legislative conflicts will not only “harm the nation’s uniformity and
dignity of rule of law,” but will “bring difficulties to law enforcement.”71 That’s why
the NPC adopted the Law on Legislation in 2000 to “ensure the uniformity of the
nation’s rule of law and construct and improve the socialist legal system with Chinese
characteristics.”72
From the perspective of center–periphery interrelation, the Law on Legislation
manages to clarify the legislative boundaries between the NPC, NPCSC, and provincial
people’s congresses through articulating clearer rules on the material scope/field of
their respective legislatures.73
In this regard, Article 8 of the law reserves ten categories of subject matters to
both the NPC and its Standing Committee. In other words, those matters can only be
addressed by laws (falü). The reservation of those matters is primarily based on their
significance, since they “are all related to important issues concerning the nation’s
basic political system, economic system and legal system.”74 In addition, the law also
states that, for matters that haven’t been reserved to the NPC and the NPCSC, if the
NPC, NPCSC, the State Council have not legislated on, provincial legislatures may
“adopt local regulations based on their own circumstances and practical needs.”75
While clarifying and enlarging the national legislative territory, the Law on
Legislation also expands the local legislative power by implanting the notion of “local
affairs.” Article 64 announces that local regulations may address local affairs. Unlike
Article 8, where the jurisdiction of the NPC and the NPCSC is exemplified with a list of
items, Article 64 fails to provide a definition for “local affairs.” But according to staff
members of the Legal Affairs Commission of the NPCSC who were deeply involved
Id., art. 31.
Gu Angran, Guanyu Zhonghua Renmin Gongheguo Lifafa Caoan De Shuoming [The Explanation on the Draft
of the Law on Legislation of the P. R. China] (Mar. 9, 2000).
72
Id.
73
There was a heated debate on how to draw the boundary between the Central and provincial legislatures.
The final arrangement favors the NPC and its Standing Committee more. See Li Yahong, The Law-making
Law: A Solution to the Problems in the Chinese Legislative System?, 1 Hong Kong L.J. 120, 121–122 (2000);
Laura Paler, China’s Legislation Law and the Making of a More Orderly and Representative Legislative System,
182 China Quart. 301, 305–307 (2005).
74
Gu, supra note 71.
75
Law on Legislation (promulgated by the Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000), art.
64(2).
70
71
74
I•CON 13 (2015), 61–89
in making the law, “local affairs” refers to “affairs with local characteristics, which
does not need to be legislated by a national law or regulation or need not be addressed
through a national law or regulation in a foreseeable future.”76 For instance, protecting local historic heritage or prohibiting fireworks is merely a local affair and it is up
to localities to determine if these issues need to be addressed by local regulations.77
Although the ten categories of reserved matters still need to be defined more clearly
and “local affairs” also calls for further explanation, the Law on Legislation indeed has
helped to supplement the Constitution on distributing legislation powers.
(b) Legalizing “one country, two systems”
As is well known, the Chinese Constitution sets up a unitary system to regulate the
center-periphery relations. Under this regime, both the executive and judicial branches
are highly centralized. The State Council is designated as the highest executive organ
and is vested with the power to intervene into every single affair of every level of local
governance.78 Likewise, the Supreme People’s Court (SPC) is the highest court within
the unitary judicial system.79 As a court of last instance, the SPC can take any case it
wants to hear or change a decision believed incorrectly handled by any lower court,
even after the ruling has taken legal effect.80 Although people’s congresses at various levels are independent from each other, both the NPC and the NPCSC still enjoy
unchallengeable authority given their supremacy in norm creation.81 Overall, the balance of power between central and local governments ends up allowing the former to
preempt the decision-making power of local governments which enjoy little noticeable autonomy.
Against this background, there is a new segment of law that has gradually evolved
from the ruling party’s long-term strategy to claim back Taiwan to a comprehensive
legal framework on how to rule Hong Kong and Macau. The idea of “one country, two
systems” was initially formulated to address the issue of reunification by China’s second-generation leaders, especially Deng Xiaoping. As Deng pointed out in early 1982,
“‘One country, two systems’ means, under a unified sovereignty, that the mainland
keeps the socialist system while Taiwan practices capitalism.”82
The Constitution does reflect this creative vision. Absent concrete elaborations, it
did provide for a procedural rule for realizing such a blueprint. Article 31 stipulates
that “[t]he state may establish special administrative regions when necessary. The
Zhonghua Renmin Gongheguo Lifafa Shiyi [Explanation of the PRC Legislation Law] 195 (Zhang Chunsheng
ed., 2000).
77
Id.
78
Constitution of P. R. China, art. 89 (1982).
79
Id., art. 127.
80
See Criminal Procedure Law (revised by the Nat’l People’s Cong., Mar. 17, 1996, effective Jan. 1, 1997),
arts. 23 and 205(2); Civil Procedure Law (revised by the Standing Comm. Nat’l People’s Cong., Oct. 28,
2007, effective Apr. 1, 2008), arts. 21(2) and 177(2); Administrative Litigation Law, art. 63(2).
81
Constitution of P. R. China, art. 5 (1982).
82
Taiwan Affairs office of the State Council, Taiwan Wenti Yu Zhongguo De Tongyi [The Taiwan Issue and
the Unification of China] (Sept. 1, 1993), available at http://www.gwytb.gov.cn/zt/baipishu/201101/
t20110118_1700018.htm.
76
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
75
systems to be instituted in special administrative regions shall be prescribed by law
enacted by the National People’s Congress in the light of the specific conditions.”
Having set the date for Hong Kong and Macau’s return to China, the NPC adopted
two basic laws respectively in 1990 and 1993 to officially implement the “one country, two systems” policy. Under this design, the two regions are nothing like localities
in mainland. On the contrary, their presence as an unseparated part of China is manifested by unprecedented autonomy.
Firstly, the central government loses virtually every constitutional means that it
usually applies in mainland in controlling localities, and acts by and large as a sovereignty claimer in the two regions. Both basic laws recognize that the regions are “an
inalienable part” of the China.83 The most important powers exercised by the central
government include maintaining defense,84 appointing the chief executive after he or
she has been elected locally,85 as well as revising and interpreting the basic laws.86
Second, the basic social, economic, and legal frameworks in the two regions have
remained almost intact. The socialist system was not to be grafted, and the capitalist system previously in place “[would] remain unchanged for 50 years.”87 More strikingly, the
Constitution of China will not be enforced in the two regions;88 the relation between the
central government and the two regions is not addressed by the Constitution, but through
the basic laws.89 Moreover, the existing legal system has almost been entirely preserved.90
Third, the two regions enjoy enormous autonomy. Both regions are guaranteed
substantial latitude to deal independently with foreign and international affairs.
They can enter into independent agreements with a foreign nation or international
organization, and also acquire membership in an international organization whose
membership is usually open to sovereign nations.91 Both regions are free to develop
their own economy without any intervention from Beijing, and enjoy exclusive control over their own revenues without paying a cent to the central government.92 Both
legislatures are able to produce any rules necessary insofar as they don’t violate the
basic laws.93 Neither court system is subordinate to the Supreme People’s Court. The
power of final adjudication is vested with the Courts of Final Appeal.94 The courts in
the two regions can even interpret the two basic laws within their capacity on the
condition that their interpretations don’t encroach upon the NPCSC’s ultimate interpretive power.95
85
86
87
88
83
84
91
92
93
94
95
89
90
Basic Law, art. 1 (H.K.); Basic Law, art. 1 (Mac.).
Basic Law, art. 14(1) (H.K.); Basic Law, art. 14(1) (Mac.).
Basic Law, art. 45(1) (H.K.); Basic Law, art. 47(1) (Mac.).
Basic Law, ch. VIII (H.K.); Basic Law, ch. VIII (Mac.).
Basic Law, art. 5 (H.K.); Basic Law, art. 5 (Mac.).
Accordingly, only six and eight national statutes will be applied in Hong Kong and Macau respectively. See
Basic Law, Annex III (H.K.); Basic Law, Annex III (Mac.).
Basic Law, ch. 2 (H.K.); Basic Law, ch. 2 (Mac.).
Basic Law, art. 8 (H.K.); Basic Law, art. 8 (Mac.).
Basic Law, arts. 151 and 152 (H.K.); Basic Law, arts. 136 and 137 (Mac.).
Basic Law, art. 106 (H.K.); Basic Law, art. 104 (Mac.).
Basic Law, art. 73(1) (H.K.); Basic Law, art. 71(1) (Mac.).
Basic Law, art. 82 (H.K.); Basic Law, art. 84 (Mac.).
Basic Law, art. 158 (H.K.); Basic Law, art. 143 (Mac.).
76
I•CON 13 (2015), 61–89
All in all, the systems incorporated by the two basic laws present a fundamental
deviation from the unitary orthodoxy enforced in mainland for decades. It demonstrates a near-landslide compromise by the Central Government in order to guarantee
the claim of sovereignty. As a result, both regions enjoy a high-level of independence
and autonomy that is unimaginable anywhere in the mainland.
3.3. Regulating the relationship between localities
As mentioned above, the Constitution provides several principles and rules on how
to manage the center–periphery relations. However, the intra-periphery relationship
is not directly governed by constitutional norms.96 Although there did exist rules on
guiding the inter-locality relations, none of them were written into the constitutional
text.97 The vacuum has been filled by statutes.
(a) Resolving jurisdiction disputes between courts
The Constitution places the court system in a very odd situation. Horizontally, a lower
court is supervised by its upper-lever counterpart and the Supreme People’s Court.98
Vertically, each court is responsible to the people’s congress at the same level.99 A dual
leadership model like this will inevitably raise questions about the effectiveness of
judgments and the possibility of judicial cooperation between courts from different
regions.
Jurisdictional dispute has long been thought as a form of local protectionism that
hinders the execution of justice and regional cooperation.100 If a local court only listens to its own people’s congress, rather than to a higher court, law enforcement will
be fragmented. Thus, a uniform court system set up by the Constitution would break
up, and trade relations among localities would slide into chaos. In order to surmount
the barriers, three sets of procedural laws have provided clear rules for litigants and
courts. Before the Constitution took effect, both the Criminal Procedure Law of 1979
and the Civil Procedure Law of 1982 had already set up a basic framework for assigning jurisdiction and resolving jurisdictional disputes. Besides establishing the principle
that allows the court of the place where a crime has been committed to claim the
As early as 1956, Mao Zedong termed this as “intra-periphery relation” and proposed that the principle
for addressing this relationship is “taking the interests of the whole into account while helping each other
and making mutual concessions.” See Mao Zedong, Lun Shida Guanxi [On the Ten Major Relationships],
in 5 Mao Zedong Xuanji [The Selected Works of Mao Zedong], 267 (1977). However, this principle has not
appeared in any of the three Constitutions adopted later.
97
Needless to say, some articles that are primarily presented to address the center–periphery relations will
have an indirect impact on intra-periphery relations. For example, when the NPC exercises the power
to “approve the establishment of provinces, autonomous regions, and municipalities directly under the
Central Government” under art. 62 of the Constitution, it will inevitably trigger the territorial boundaries
among several provincial level localities.
98
Constitution of P. R. China, art. 127.
99
Id., art. 128.
100
See Yu Lingyu, Guanxiaquan Yiyi Zhisu Zhiyi [A Query on Jurisdiction Objection Litigation], 3 Zhongwai
FaXue [Peking U. L. Rev.] 48 (1990); Lou Jian, Difang Baohu Zhuyi Zai Fayuan Shenpan Gongzuo Zhong De
Juti Biaoxian [Local Protectionism on the Judicial Arena], 6 Zhongwai Faxue [Peking U. L. Rev.] 70 (1990).
96
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
77
primary jurisdiction,101 the Criminal Procedure Law of 1979 also provides that the
court of the place where “the defendant resides,” the court “that first accepted the
case,” and the court “in the principal place where the crime has been committed”
could also assert jurisdiction under respected circumstances.102 In addition, the 1979
law specified that a higher court may instruct a lower court to try a case over which
jurisdiction is unclear and may also instruct a lower court to transfer a case to another
lower court for trial.103
The Civil Procedure Law of 1982 laid out a series of rules for local courts to choose
from when deciding upon jurisdiction. From the outset, the 1982 law designates the
court where the defendant has domicile as the primary arbiter of a civil case.104 Then
it also gives the court of the place where the plaintiff is domiciled, where the tortious
act has been committed, or where the contract has been signed or executed, the jurisdiction under specified conditions.105 At the same time, the 1982 law devotes a chapter to the issues of designation and transfer of jurisdiction. The rule of designation of
jurisdiction is not different from the one contained in Criminal Procedure Law, which
authorizes a higher court to assign jurisdiction.106 The most striking part of the 1982
law is that it has also provided rules on how to resolve jurisdictional disputes. Article
32(2) specifies that, “in the event of a jurisdictional dispute, between two or more people’s courts, it shall be resolved by the disputing parties through consultation; if the
dispute cannot be resolved, it shall be reported to their common superior people’s court
for the designation of jurisdiction.” This “mutual consultation, then asking for a decision from the top” model has been duplicated into other areas triggering interrelation
between localities.
Surprisingly, neither the specific rules nor principles mentioned above have been
absorbed into the Constitution. Nevertheless, the supreme law has not expressly
annulled these rules. On the contrary, both laws continued to function for years.
In 1989, the Administrative Litigation Law almost duplicated all of the rules on
jurisdictional dispute resolution from the Civil Procedure Law of 1982,107 except
the principle that assigns the primary jurisdiction to the court in the locality where
the administrative agency has initially undertaken the administrative act.108 Similar
duplication was also carried out in the Civil Procedure Law of 1991. Although the
Criminal Procedure Law underwent a significant overhaul in 1996,109 the rules on
jurisdictional dispute resolution remained intact.110
103
104
105
106
107
108
109
Criminal Procedure Law 1979, art. 19.
See id., arts. 19 and 20.
See id., art. 21.
Civil Procedure Law (provisional version), art. 20 (China).
See id., arts. 21–31.
See id., art. 33(1).
See Administrative Litigation Law, arts. 20–22 (China).
See id., art. 17.
See Jonathan Hecht, Opening to Reform?: An Analysis of China’s Revised Criminal Procedure Law, Lawyers
Committee for Human Rights (Oct. 1996), available at http://www.law.yale.edu/documents/pdf/
Opening_to_Reform.pdf.
110
See Criminal Procedure Law 1996, arts 24–26 (China).
101
102
78
I•CON 13 (2015), 61–89
These rules are much like the Full Faith and Credit Clause of the US Constitution,
which requires each state to enforce judgments rendered in other states. As Professor
Sunstein points out, the clause helps to solve “a conventional prisoners’ dilemma,”
since “all states would be better off if the law bound each of them to respect the
judgments of the others.”111 Likewise, through various rules, the highly centralized
Chinese court system is able to circumvent territorial walls often built by local protectionists. These rules can also catalyze cooperation within the court system and help to
maintain a more efficient judicial process.
(b) Regulating inter-regional commerce
It is universally true that local governments always tend to build trade walls against
each other in order to maximize their own economic gains, be it a centralized country, a federal country or a regime with other forms. Although China has been understood as a unitary country, it is actually hard for the central government to compel
the localities to coordinate with each other. “Local protectionism” has been one of the
most visible chronic diseases that undermine unity. For decades, the State Council has
constantly launched nation-wide campaigns against beggar-thy-neighbor policies.112
Therefore, dismantling regional walls and creating a win-win situation for all stakeholders has also become a necessity for constitution-building. Again, China solves this
puzzle not by its Constitution, but through statutes.
In 1992, the Chinese Communist Party set the goal of constructing the socialist
market economy. The party proposed to “manage to carry out ten major missions that
affect the entire nation,” and the second main mission proposed was to “speed[] up
fostering the market system” so as to “construct a uniform, open market framework
nationally.”113 The party further vowed to “strengthen the construction of market
institutions and rules, forcefully break down both vertical and horizontal fragmentation, blockade, and monopoly, promote and protect fair competition.”114
In the following year, the NPCSC passed the Anti-Unfair Competition Law as a way
to “maintain the order of the socialist market economy, advocate and protect fair competition.”115 The second chapter of the law directly demands that local governments
not limit or even prohibit competition. It provides that “the government and its departments shall not abuse their executive power limiting products from other jurisdictions
from entering into the local market or local products from flowing to other places.”116
Cass Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633, 640 (1991).
See, e.g., The State Council’s Decision on Rectifying and Normalizing the Order of the Market Economy
[Guowuyuan Guanyu Zhengdun He Guifan Shichang Jingji Zhixu De Jueding] (May 10, 2001).
113
Jiang Zemin, Jiakuai Gege Kaifang He Xiandaihua Jianshe Bufa Duoqu You Zhongguo Tese Shehui Zhuyi
Shiye De Gengda Shengli [Speeding up the Pace of the Reform and Opening Up and the Construction
of Modernization Achieving Bigger Triumph on the Mission of Building the Socialism with Chinese
Characteristics] (Oct. 12, 1992).
114
Id.
115
Guanyu Zhonghua Renmin Gongheguo Fan Buzhengdang Jingzheng Fa Caoan De Shuoming [The Explanation
on the Draft of the Anti-Unfair Competition Law of P. R. China] (June 22, 1993).
116
Anti-Unfair Competition Law (promulgated by the Standing Comm. Nat’l People’s Cong., Sept. 2, 1993,
effective Dec. 1, 1993), art. 7(2) (China).
111
112
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
79
This was the first instance where the lawmakers force the local governments to take
upon themselves the responsibility of maintaining competition in the market. In addition, the law also furnishes legal responsibilities for violating the duty.117
In 2007, after a lengthy and heated debate,118 the NPCSC eventually enacted into
the Anti-Monopoly Law a whole set of prohibitions against the executive branch and its
delegated organizations on various activities, including preventing merchandise from
moving freely across the nation;119 preventing or limiting outside enterprises from participating in project bidding by setting up discriminatory criteria or review standards, or
refusing to disclose necessary information;120 or preventing outsiders from investing or
establishing sub-branches in local market by offering unequal treatment.121 Meanwhile,
the law also affords similar legal responsibilities as the Anti Competition Law.122
The Administrative Licensing Law of 2003 makes an even bolder move. It not only
regulates concrete administrative actions, but also local regulations and rules. The law
limits the local governments on setting administrative licenses through legislation in
two circumstances. First, it prohibits any provincial level governments from establishing
administrative licenses for the qualification or eligibility of citizens, legal persons, or other
institutions that shall be determined by the national government.123 Second, any licenses
set by local legislation “shall not hinder the individuals or enterprises of other regions from
dealing in production and business and providing services in one region, shall not restrict
the commodities of other regions from entering into the market of the local region.”124
4. Why has legislation become a primary method for
constitutional development?
Unexpectedly, the emergence of statutes has served as a primary source to upgrade
the Constitution. The driving forces behind this surprising outcome are dynamic: the
Id., art. 30.
During the legislative deliberation, members of the NPC Standing Committee disagreed on whether the
so-called “administrative monopoly” should be addressed in this law. Some argued that administrative
restraint on economic competition is an undue use of the administrative power, thus the problem should
be better tackled by economic and administrative reform, rather than by the anti-monopoly law. But the
majority thought although it is at odds with the globally common practice, the inclusion of this specific
form of monopoly fits China’s actual conditions. Eventually, the opposition was overtaken by the majority
opinion. See Guanyu Zhonghua Renmin Gongheguo Fan Longduan Fa Caoan De Shuoming [The Explanation
on the Draft of the Anti-Monopoly Law of P. R. China] (June 24, 2006).
In essence, this debate is of constitutional significance. The reason why the inclusion is against the
global trend is that this form of anti-competition act arising from a hostile response from one local governmental towards the other one is usually dealt with by a constitution or constitutional judgments.
119
Anti-Monopoly Law (promulgated by the Standing Comm. Nat’l People’s Cong. Aug. 30, 2007, effective
Aug. 1, 2008), art. 33 (China).
120
Id., art. 34.
121
Id., art. 35.
122
Id., art. 51.
123
Administrative Licensing Law (promulgated by the Standing Comm. Nat’l People’s Cong. Aug. 27, 2003,
effective July. 1, 2004), art. 15(2) (China).
124
Id.
117
118
80
I•CON 13 (2015), 61–89
solid demand for norm creation, the restrictions on the other two development methods, and the advantages offered by legislation.
4.1. Endless demand for norm creation
Like ordinary legislative acts, the Constitution is primarily a reflection of a social
consensus and imagination at the time of its inception. The drafters were not able
to foresee the future, and could only provide solutions to issues facing them based on
availability and plausibility. Thus, the Constitution’s ability to address future issues is
usually, if not always, limited. As society evolves, the constitutional text more or less
fails to keep pace with the changing reality. Nevertheless, general principles tend to
have more flexibility than specific rules.
Both the Communist Party and the NPCSC have realized that it is necessary to
reserve some channels to allow the constitutional text to catch up with the changing
world. Although the stability of the Constitution has been deemed to be its foremost
feature, flexibility is also constantly demanded by top leaders. Former President Jiang
Zemin stressed that, “[a]s the reality changes, the Constitution also needs to proceed
forward. Thus, it is necessary to revise those clauses that are out of line with the reality by referring to practical experiences learned during ‘reform and opening up’ and
the construction of socialist modernization.”125 In 1999, Li Peng, then the Chair of
the NPCSC also pointed out that the “[l]aw shall remain relatively stable, but it cannot
be immutable. So it is necessary to revise the law based on the changing situation.”126
From 1978 till now, China has experienced continued, acute social transformation:
from isolating itself from the rest of globe to launching the opening-up policy and
to joining the World Trade Organization (WTO); from rigidly sticking to the planned
economy to embracing the market economy; from forcefully guarding the segregationoriented dual system between rural and urban China to initiating a non-stop, ongoing campaign of urbanization, etc. An extensive, fundamental transformation such
as this inevitably calls for the adoption of a legal system, including the Constitution.
4.2. Restrictions on the other two development methods
As mentioned, the Constitution has reserved three ways for itself to evolve over time. Among
the three procedures, adopting statutes seems to be the most restrictive. On the one hand,
there are only a limited number of provisions in which the Constitution clearly delegates
the legislative power to the NPC and the NPCSC.127 Whether the NPC or the NPCSC could
develop the Constitution without a clear authorization is extremely problematic. On the
other hand, although both the NPC and the NPCSC can, upon delegation, upgrade the
Constitution, these legislative works shall not “contravene the constitution.”128
Liu Zhenying et al., Zhengqiu Dui Xiugai Xianfa Bufen Neirong De Yijian Zhonggong Zhongyang Zhaokai
Dangwai Renshi Zuotanhui [The CCP Central Committee Solicit Opinions from Non-CCP Leaders on
Constitutional Amendments], Renmin Ribao [People Daily] (Feb. 1, 1999).
126
Li, supra note 54, at 272.
127
According to Profs. Han Dayuan and Wang Guisong, there are 13 articles making such delegation. See
Han & Wang, supra note 10.
128
Constitution of P. R. China, art. 5(3).
125
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
81
By contrast, neither amendments nor interpretation have raised similar limitations.
The Constitution does not set any limitation on the content or scope of an amendment.129 Likewise, it attaches no limits to constitutional interpretations. Therefore,
some scholars suggest that constitutional interpretation is “the least costly, relatively
flexible” and “the primary” way to fill the gap between the constitutional text and the
reality.130
In other words, both amendments and interpretations seem to possess more
advantages than legislation does, and ought to have become more common and
dominant ways of constitutional innovation. Facing various demands for norm creation, both the NPC and the NPCSC should have responded more frequently through
amending or interpreting the Constitution. However, this has not been proved in
practice. For various reasons, neither amendments nor interpretations have fulfilled
their role as wished.
(a) Amending the Constitution has been curtailed
With regard to upgrading the Constitution via amendments, both the ruling party
and the NPCSC’s attitudes have been modified over time. The direction of modification
is towards reducing the frequency of using this procedure.
In the 1980s, when the nation was overwhelmed by reforms, senior leaders treated
reform as the top priority, and weighed reform against law in case they should conflict.
In early 1988, when deliberating over the constitutional amendments, party leaders
proposed two principles: (i) reform shall follow the law and the law shall serve reform;
(ii) any (rules) standing in the way of reform must be amended.131 Although they also
emphasized the amendment procedure should be cautiously used (“limited to those
clauses that must be amended”), that the legal system shall make way for reform
became a principle.132
Due to the radical political transitions in Eastern Europe and at home, the attitude
toward amending the Constitution suddenly shifted. In 1990, the NPCSC, in a report
to the Central Committee of the Chinese Communist Party (CCCCP), put forward new
principles. The report first emphasized that “the biggest state interest at present is stability, and the stability of the Constitution is the basis for the stability of the nation.”133 It
This differs dramatically from the two Basic Laws, which both stress that “[n]o amendment . . . shall
contravene the established basic policies” of China regarding these two special administrative regions.
See Basic Law, art. 159(4) (H.K.); Basic Law, art. 144(4) (Mac.).
130
Han Dayuan, Shiliuda Hou Xu Qianghua Xianfa Jieshi Zhidu De Gongneng [Calling for Enhanced
Constitutional Interpretation after the Sixteenth Congress of CCP], 1 Fa Xue [Legal Science] 18 (2003).
131
Cai, supra note 45, at 79.
132
This position was echoed by some legal scholars who promoted the notion of “benign violation of the
Constitution” in the mid-1990s, which would prompt rounds of heated debates within the legal academia. See Hao Tiechuan, Lun Liangxing Weixian [On Benign Violation of the Constitution], 4 Faxue Yanjiu
[Cass J. L.] 89 (1996); Tong Zhiwei, Liangxing Weixian Buyi Kending: Dui Hao Tiechuan Tongzhi Youguan Zhu
Zhang De Butong Kanfa [Benign Violation of the Constitution Shall Not be Approved: A Response to Prof. Hao
Tiechuan], 4 Faxue Yanjiu [Cass J. L.] 19 (1996).
133
Guanyu Xiugai Difang Zuzhifa He Xuanjufa Sheji Xiugai Xianfa De Jige Wenti De Baogao [The Report
on Several Questions Concerning Amending the Local Organic Law and the Election Law that Trigger
Amending the Constitution], cited in Cai, supra note 45, at 82.
129
82
I•CON 13 (2015), 61–89
then pointed out that, “in several countries in Eastern Europe, the chaos that break
out starting last year all started with amending the Constitution.”134 Finally, the report
sorted out different revising strategies respectively. “Fundamental principles and
issues that must be revised”…“shall be revised after going through thorough discussion and research”; rules “may or may not be revised” had better “not be revised.”135
The CCCCP approved that report and decided not to amend the Constitution during
the Seventh Session of the NPC.136
In 1992 a Vice Chair of the NPCSC once again reminded that “there is a close connection between the various fallacious ideas concerning amending the Constitution
proposed by those obstinate ‘capitalist roaders’ and ‘elites’ who incited overthrowing
the regime and the turmoil and riot later present.”137 He then proposed the following
guideline:
Both the peaceful evolution in Soviet Union and Eastern Europe and the turmoil we experienced between the Spring and Summer of 1989 have all taught us that maintaining the stability of the Constitution is not only the ultimate legal safeguard for the enduring stability of the
nation, but also a fundamental issue affecting the destiny of the party and the nation. Although
some specific rules of the Constitution may be amended based on the development and necessity of the nation’s practical situation, the fundamental institutions and missions of the nation
prescribed in the Constitution should never be revised rashly.138
From then on, that rules which “may or may not be revised” had better “not be
revised” has become a highly binding principle; it has been constantly raised during
later amending practices, and became a major standard for judging the propriety of
constitutional amendments.139 As a result, ensuring the stability of the Constitution
and the regime has become a compelling principle to fence off “unnecessary” requests
for norm creation.
In the new century, Wu Bangguo, former Chair of the NPCSC, also proposed new
thoughts as follows:
The Constitution is the supreme law of the land. Compared to ordinary statutes, the
Constitution . . . is supposed to resolve overall, long-term, and ultimate issues in national political, economic and social life. . . . Hence, amending the Constitution shall take into account
the overall situation of the nation with broader perspective and ought not be guided by issues
related only to a given department or area.140
Id.
Id.
136
Id.
137
Wang Hanbin, Guanyu Xianfa De Jige Wenti De Baogao [On Several Issues of the Constitution], in Wang
Hanbin, Shehui Zhuyi Minzhu Fazhi Wenji [The Selected Works on Socialist Democracy and Rule of Law]
397, 398 (2012).
138
Id. at 398.
139
See Wang Zhaoguo, Guanyu Zhonghua Renmin Gongheguo Xianfa Xiuzheng’an Caoan De Shuoming
[The Explanation on the Draft of the Amendments to the Constitution of the P. R. China] (Mar. 8, 2004).
There has not been a consistent standard on how to judge “may or may not be revised” during the previous amending process. The standard varied from time to time. See Liu Zheng, Woguo Xianxing Xianfa Xiugai
De Yuanze, Fangshi He Chengxu [The Principle, Venue and Procedure for Amending the Constitution], 21
Zhongguo Renda [China People’s Congresses] 27 (2002).
140
Chair Wu Bangguo’s Address at the Sixth Meeting of the Tenth NPC Standing Committee (Dec. 27, 2003).
134
135
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
83
Accordingly, the criterion for deciding the content of the amendments has been
switched from its relation to regime stability to the importance of the rules. Therefore,
“seizing the big and freeing the small” becomes a practical principal.
In addition, some scholars also challenged the so called “policy-oriented amending
model,” where the Constitution has usually been amended under the instruction of
the ruling party, and urged the party, the NPC, and the NPCSC to restrain themselves
from continuing the practice and to amend the Constitution in accordance with the
Constitution.141 Such public concerns more or less affected the practice of amending
the Constitution.142
(b) The absence of formal constitutional interpretations
While emphasizing that the Constitution should be amended cautiously, both the
CCCCP and the NPCSC have long treated constitutional interpretation as a supplemental, even primary, way of constitutional development, and have on several occasions highlighted the same effect that a constitutional interpretation will generate as
a constitutional amendment.
As early as 1993, the CCCCP declared: “there won’t be an overall overhaul of the
Constitution this time . . . some issues can be solved by constitutional interpretation
in the future.”143 In the meantime, answering the call to provide a detailed definition
of the socialist market economy, it responded that “since the socialist market economy
is still under development, it is hard to describe it in legal language,” but, if necessary, “[we could] render a constitutional interpretation on the specific definition of the
socialist market economy” in accordance with the official report of the 14th National
Convention of the Communist Party.144
Much earlier, Qiao Shi, then the Chair of the NPCSC, urged that “the Standing
Committee shall further fully exercise the power of interpreting the Constitution and
laws.”145 Likewise, when amending the Constitution in 1999 and 2004, the NPCSC
consistently emphasized that some contents or suggestions could be adopted by constitutional interpretations as it was screening various proposals.146
Meanwhile, legal scholars also tried to examine the possibility and advantages of
adopting constitutional interpretations to the NPCSC. Professor Xu Chongde, former
See Li Xiaoguang & Zhu Xiaoqing, Xiuxian Yingdang Huanxing [Don’t Amend the Constitution Too Often], 5
Renda Yanjiu [People’s Congresses Studies] 28 (2003).
142
In fact, soliciting opinions and suggestions from the academia has become a precedent and an indispensable part of the amending process. That gives scholars certain latitude to exhibit their influence. See Li,
supra note 54, at 260.
143
Zhongguo Gongchandang Zhongyang Weiyuanhui Guanyu Xiugai Xianfa Bufen Neirong De Buchong
Jianyi [The CCP Central Committee’s Supplemental Suggestions on Amending the Constitution] (Mar.
14, 1993).
144
Id.
145
Chair Qiao Shi’s Address at the First Meeting of the Eighth NPC Standing Committee (Apr. 1, 1993)
146
See Dijiujie Quanguo Remin Daibiao Dahui Dierci Huiyi Zhuxituan Guanyu Zhonghua Renmin
Gongheguo Xianfa Xiuzheng’an Caoan Shenyi Qingkuang De Shuoming [The Second Session of the
Ninth NPC Presidium’s Explanation on the Review Situation of the Draft of the Amendments to the
Constitution of P. R. China] (Mar. 14, 1999).
141
84
I•CON 13 (2015), 61–89
President of the China Constitutional Law Society (CCLS), advised the legislature to
“strengthen interpreting the Constitution.” He further emphatically pointed out that
“adopting constitutional interpretations not only helps the Constitution to continuously adapt to the changing demands of the society, but also maintains the stability of
the supreme law by avoiding constant revisions.”147 In 1998, Professor Han Dayuan,
current President of CCLS, also proposed to Chair Li Peng that “some (constitutional
amendments) proposals may be adopted by constitutional interpretations rather than
being written into the text.”148 In early 2012, Professor Liang Huixing, a member of
the NPCSC, submitted a proposal to the NPC, urging the latter to enact the Law on
Constitutional Interpretation Procedure, and enclosed a comprehensive draft completed by a task group of the China Renmin University Law School.149 Such suggestions have been endorsed by, and resonated with, the NPCSC senior staff.150
The practice of interpretation, however, is disappointing and frustrating. Except
the de facto constitutional interpretations identified by various scholars,151 “the state
organ whose duty is to interpret the Constitution and laws has never . . . rendered a
formal interpretation concerning a given clause.”152 As an important tool for enforcing the Constitution, constitutional interpretation hasn’t been invoked to meet the
social needs. As Professor Han Dayuan puts it:
In fact, we have encountered many constitutional issues that need to be resolved through exercising constitutional interpretive authority . . . The reality also provided the opportunity to
initiate the constitutional interpretation procedure. But in practice, we haven’t paid enough
attention to the importance of the constitutional interpretations towards the social transition.
Rather, we’ve overstated the function of constitutional amendments.153
The unwillingness to interpret the Constitution provides a startling contrast with
the more active practices in statutory interpretation. Although the NPCSC is often
moderate in exercising its interpretative power, it has after all produced sixteen
interpretations.154 More strikingly, behind the facts of “favoring constitutional
Xu Chongde, Woguo Xianfa Yu Xianfa De Shishi [Our Constitution and its Enforcement Machenism], 16
Renda Gongzuo Tongxun [Newsletter on People’s Congresses] 7 (1998).
148
Li, supra note 54, at 260.
149
He Xin, Liang Huixing: Ying Zhiding Xianfa Jieshi Chengxufa [Liang Huixing: Constitutional Interpretation
Procedure Law Must be Adopted], Caixin Net (Mar. 11, 2003), available at http://china.caixin.com/201203-11/100366674.html.
150
Liu, supra note 139.
151
As understood, formal interpretations are those interpretations issued by the NPCSC. The title of a formal
constitutional interpretation shall clearly mention that it is a constitutional interpretation, rather than a
statutory interpretation or other documents that have a constitutional implication.
According to some scholars, De facto interpretations are resolutions, statutory interpretations adopted
by the NPCSC that touch upon constitutional issues. See Hu Jinguang & Wang Conghu, Lun Woguo Xianfa
Jieshi De Shijian [On Constitutional Interpretation Practices], 2 Law and Economics Studies 3 (2000); Wang,
supra note 17, at 290–300.
152
Yuan Jiliang, Lun Lifa Jieshi Zhidu Zhifei [The Problems of Legislative Interpretation], 4 Zhongguo Faxue
[China Legal Science] 24 (1994).
153
Han, supra note 130.
154
These include four interpretations on Hong Kong Basic Law, one interpretation on Macau Basic Law, nine
interpretations on Criminal Law, and two interpretations on Nationality Law.
147
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
85
amendments, disfavoring constitutional interpretations,” and “favoring law interpretations, disfavoring constitutional interpretations,” the NPCSC has never openly
provided an explanation to help people understand its policy preferences. The common response from the former and current staff members of the NPCSC reveals
that the lack of both workable operational procedure and proper cases is the main
cause.155
(c) The advantages of adopting statutes
When the function of constitutional amendment and interpretation is curtailed, statute making becomes a more common and preferred way of allowing the Constitution
to evolve in a timely fashion. As opposed to constitutional amendments and interpretations, legislation adoption offers incomparable advantages.
First, adopting a statute normally provokes less resistance than passing a constitutional amendment. Except for statutes of immense significance, both the NPC and
the NPCSC can direct the whole process independently and free of the intervention
from the ruling party at an early stage of the legislative process.156 Since the ordinary legislative process is less likely to be affected by the ruling party, the legislative
debate will be more focused on legal issues and conducted within the two legislatures. In addition, since it follows the ordinary legislative procedure, and the main
subject matter seems to be unrelated to any constitutional issue, it won’t attract
as much public attention and media coverage as a constitutional amendment.157
The lack of controversies makes the legislative process more efficient. It is especially
urgent to avoid potential challenges to constitutionality in the case of statutes which
do not have sufficiently solid support of the constitutional text, or even contradict
the text, but which represent a trend in social development. As time goes by, preference towards the ordinary procedure will be emulated and will become a day-to-day
business.
Second, the NPC’s statutes usually share the same level of legitimacy as a constitutional amendment. In China, both constitutional amendments and basic laws are
adopted by the NPC, although amendment drafts need the approval of two-thirds of
the deputies, whereas drafts of basic laws need the approval of only half of the total
votes. In reality, however, all the statutes adopted by the NPC have won over two-thirds
of the total votes. This reminds us that there is no significant difference between a
constitutional amendment and a statute enacted by the NPC in terms of legitimacy.
For this reason, some scholars have categorized these statutes as “constitution-level
Interviews with former and current staff members of the Legal Affairs Commission of the NPCSC, Apr.
2012. This actually echoes the conclusion that a current staff member made almost ten years ago. See
Yuan, supra note 152.
156
See Murray Scot Tanner, The Erosion of Communist Party Control over Lawmaking in China, 138 China
Quart. 381, 399–400 (1994).
157
For sure, there exist exceptions. See Gong Xiantian, Yibu Weibei Xianfa He Beili Shehui Zhuyi Jiben
Yuanze De Wuquanfa Caoan [The Draft of the Property Law: An Unconstitutional Act and A Deviation
of the Fundamental Principles of Socialism], News Q.Q. (Dec. 21, 2006), available at http://news.
qq.com/a/20061221/002288.htm; Tong Zhiwei, Wuquanfa Caoan Ruhe Tongguo Xianfa Zhimen [How
Could the Draft of the Property Law Pass the Constitutional Hurdle?], 3 Fa Xue [Legal Science] 4 (2006).
155
86
I•CON 13 (2015), 61–89
statutes,” “quasi-constitution,” or “small constitution.”158 This high level of legitimacy may well offset the accusation of unconstitutionality, should a basic law change
the meaning of a given constitutional article. In the meantime, since the NPCSC contains both procedural and substantive tools to control the agenda of the NPC, it can
also submit a draft statute to the NPC for approval, should its enactment of the statute
be perceived to be unconstitutional.
Third, unlike constitutional interpretation or constitutional review that is usually
conducted in a passive, case-by-case fashion and inevitably leads to confrontation, a
constructive and comprehensive legislation tends to build consensus more easily and
function more efficiently. Currently, although there exists a high consensus within the
academia on the necessity of having a constitutional review system, no consistent
constitutional interpretation or review system has been adopted or implemented. On
the one hand, although both the NPC and the NPCSC have the authority to supervise
constitutional enforcement, neither of them has officially exercised this power, nor
have they emphasized or advocated enhancing this authority.159 On the other hand,
the push for “judicialization of the Constitution” represented by the Qi Yuling case160
has suffered several major setbacks in recent years.161 The main reason for stagnation
in both contexts lies in the fact that a judgment on constitutionality will inevitably
lead to confrontation, which will further challenge the party-state regime that weighs
consensus-building as an inviolable value.162 To the contrary, the legislative process of
both the NPC and the NPCSC involves constant consultation, negotiation and consensus building with other branches.
Last but not the least, statutes adopted by the NPC and the NPCSC have rarely
encountered any external review. If those statutes were constantly subject to oversight, the pace of developing the Constitution through legislation would be inevitably slowed down, or even stunted. The lack of a day-to-day oversight has thus
created a comfortable environment for legislation to grow in volumes and helped the
Constitution transform. Although “no laws . . . may contravene the Constitution,”163
the founding document has not offered clear guidance on how to supervise statutes
For instance, some scholars argue that “[b]oth the NPC and its Standing Committee have enacted a series
of statutes that address constitutional issues. They are constitution-level statutes. . . . And they are the
inextricable parts of constitutional norms.” See Hu & Han, supra note 2, at 103.
159
The boldest tone in this sense was set in 1998 when the NPCSC announced, “[we] have to further establish and perfect the constitutional review system and adopt clear rules on the content, form and procedure
of constitutional oversight.” See The Annual Work Report of the NPC Standing Committee (1998), available at http://www.npc.gov.cn/wxzl/gongbao/1998-03/10/content_1480064.htm.
160
See Shen Kui, Is It the Beginning of the Era of the Rule of Constitution? Reinterpreting China’s “First
Constitutional Case”, 12 Pac. Rim L. & Pol’y J. 199 (2003).
161
See Donald Clark, Supreme People’s Court Withdraws Qi Yuling Interpretation, Chinese Law Prof Blog (Jan. 12,
2009), available at http://lawprofessors.typepad.com/china_law_prof_blog/2009/01/supreme-peoples.
html. See also Tong Zhiwei, A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to the Qi
Yuling Case, 43 Suffolk U. L. Rev. 101 (2010).
162
Exactly based on this concern, the former Chair Li Peng expressed his reservation on confronting the
State Council directly by striking down unconstitutional or illegal regulations. He preferred to achieve the
same goal through negotiation. See Li, supra note 54, at 560.
163
Constitution of P. R. China, art. 5(3).
158
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
87
enacted by the NPC; although the NPC has the authority to “alter or annul” “inappropriate decisions” of its Standing Committee,164 the NPCSC’s statutes have never been
struck down by its mother body; and although the Law on Legislation has already
subjected both the State Council’s regulations and other lower norms to a comprehensive review system,165 statutes of the NPC and its Standing Committee are beyond the
reach of this system. Additionally, the NPCSC can, when necessary, by exercising its
constitutional interpretive power, justify both its own laws and the NPC’s statutes. On
the whole, an oversight vacuum has cleared the way for legislation to transform the
Constitution over time.
5. Conclusion: not an exception, but a common
phenomenon
If we look beyond the constitutional text and take the aforementioned and other
equivalent statutes into consideration, the outlook of the Chinese constitutional law
will be more diverse and dynamic. While a more operational constitutional review
system is yet to be cemented, both the NPC and its Standing Committee have, through
lawmaking, considerably changed the state power structure. As a result, the central government’s accumulated authority has been reduced to allow for more local
autonomy. The concentration of decision-making power in the hands of people’s congresses’ has been replaced by a more diffused and balanced multidimensional power
structure. And the interregional relation no longer counts exclusively on the central
government’s arrangement and intervention. All these changes are of constitutional
significance. Consequently, a new body of constitutional law has been created without
formally changing the constitutional text.166
The Chinese experience, however, is by no means unique. In other jurisdictions
around the globe, constitutional changes can be achieved through diverse ways.
Amendments, referendum, interpretation, legislation, and even social change can all
trigger an alteration in the existing constitutional order. On occasion, these modes
compete with each other in bringing about change.167 In addition, it is not uncommon
that other evolutional modes—i.e., other than those authorized by the Constitution—
will emerge or even supplant formal procedures.
Id., art. 62(11).
Law on Legislation, arts. 91–92 (China).
166
Although all the changes listed in this article seem desirable, it is still too risky to take these laws on
paper as laws in action. As in other jurisdictions, actual practice cannot be easily comprehended from the
wording in a code. See Jerome Cohen, An Introduction to Law in China, 8 Vt J. Envtl L. 393 (2007); Jacques
deLisle, Atypical Pneumonia and Ambivalent Law and Politics: SARS and the Response to SARS in China, 77
Temp. L. Rev. 193 (2004).
Doubts have already been raised on the real change that some of the statutes will bring. See Eleanor
M. Fox, An Anti-Monopoly Law for China: Scaling the Walls of Government Restrains, 75 Antitrust L.J. 173
(2008).
167
Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe, in Responding
to Imperfection: The Theory and Practice of Constitutional Amendment 275 (Sanford Levinson ed., 1995).
164
165
88
I•CON 13 (2015), 61–89
In the United States, judicial review, a mechanism lacking a textual basis in the
Constitution, has emerged as a mainstream mode of constitutional change and has
replaced constitutional amendments. The difficulty in bringing such changes through
consensus-building in an increasingly diverse society has informed such developments.168 A recent study has unveiled an even striking phenomenon that is almost
identical to the Chinese story: some “super statutes” adopted by US Congress have not
only developed the Constitution in greater detail, but they also changed the meaning
of the supreme law in some circumstances.169 In 2005, the United Kingdom broke
with its tradition by establishing the Supreme Court to exercise judicial review over
secondary legislation and allowed it to issue a declaration of incompatibility towards
both primary and secondary legislation in cases involving human rights.
In oriental societies and relatively new constitutional regimes, the same phenomena are not invisible. Scholars have found that, although the Japanese Constitution has
remained unchanged since its enactment in 1947, “incremental but nevertheless substantial reforms have been undertaken at the statutory level that have great constitutional implications.”170 Tom Ginsburg has also proved that the reason why constitutional
adjudicatory organizations in South Korea and Taiwan have played a greater and more
active role lies in the fact that legislatures in both jurisdictions are not mature enough.171
Faced with this scenario, in comparative constitutionalism studies, scholars have
already paid a great amount of attention to “extratextual constitutional change”
and avoided taking too rigid a view on evolution venues. As Murphy unmistakably
pointed out:
The constitutional text of every major nation explicitly provides for its own amendment. But
even a superficial glance reveals other means to change a constitution, usage and interpretation being among the most common. Furthermore, it is often difficult to tell, except in a
mechanical sense, when political actors have justified their action by interpreting the text, just
as those who follow an older interpretation may unthinkingly accept it as a usage. And there
can be little doubt that some legislative, executive, and judicial interpretations have affected the
constitutional order far more radically than many formal amendments.172
Holmes and Sunstein further argue that the substance of a constitution determines
how flexible an amending procedure shall be. Although a relatively rigid amending
procedure is desirable in Western Europe, where constitutions contain entrenched
“good things,” a similar procedure will prevent legislatures in southeastern Europe
from eliminating “bad contents” that have been inserted by former communists.173
Overall, whether a constitutional change procedure is rigid or not, how many
See Norman Dorsen & Michel Rosenfeld, Comparative Constitutionalism: Cases and Materials 91 (2003); Cass
Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever 181
(2003).
169
See William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution (2010).
170
Jiunn-Rong Yeh & Wen-Chen Chang, The Emergence of East Asian Constitutionalism: Features in Comparison,
59 Am. J. Comp. L. 805, 820 (2011).
171
Tom Ginsburg, Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan, 27
Law & Soc. Inquiry 763, at 790 (2002).
172
Walter F. Murphy, Constitutions, Constitutionalism, and Democracy, in Constitutionalism and Democracy:
Transition in the Contemporary World 3, 13 (Douglas Greenberg et al. eds., 1993).
173
Holmes & Sunstein, supra note 167.
168
Constitutional evolution through legislation: The quiet transformation of China’s Constitution
89
modalities for such a change a country has, and whether a constitutional change can
be brought about through a procedure on the books, varies as the situation changes
and over time.
Experiences from both China and other jurisdictions require us to take an unconventional look at the Chinese constitutional law. As long as China still has to rely on the
current constitutional order and legal system, the constitutional norm won’t remain
static or steadfast. Nor shall the absence of a functional constitutional review system
prevent the growth of new constitutional norms. What matters more is the extent
to which the constitutional order will be further altered. However, this doesn’t mean
that a constitutional review system is unnecessary. After all, it would be too naïve
to expect legislatures to always produce good laws rather than bad ones. Statutory
changes, including those mentioned in this article need to be reexamined by a review
mechanism. A sustainable constitutional regime needs not only a flexible growth path
to accommodate unexpected social needs, but a serious constitutional review system
to uphold fundamental principles.