In a recent exclusive interview with the Legal Daily, LIANG Ying (梁鹰), director of the Office for Recording and Reviewing Regulations under the Legislative Affairs Commission (LAC) of the NPC Standing Committee (NPCSC), revealed that authorities are now contemplating significant expansion of the scope of constitutional review (合宪性审查), following the Communist Party’s decision to “advance constitutional review” at its 19th Congress. The theoretical and practical feasibility of the reforms that Liang mentioned was still under research. And it is unknown at this point whether, or when, those proposed reforms would be implemented. But the fact that the authorities have chosen to disclose them indicates similar reforms will be eventually implemented. This interview is thus worth paying close attention to. Some unorganized thoughts follow the summary of the interview. All emphases below are ours.
Official Characterization & Guiding Principle
Liang started by characterizing constitutional review as follows:
Constitutional review is a massive systemic project, is a highly visionary strategic decision put forward by the Party’s 19th Congress, and will provide a powerful driving force for the development of comprehensively governing the country according to law both in scope and depth. The establishment and implementation of the constitutional review system will surely become the “main handle” and “main switch” of comprehensively governing the country according to law.
He further called constitutional review “a historic change” (历史变革) on which “there is currently no difference in understanding” (目前认识上不存在问题). The “key,” according to Liang, is how to implement this system. And “the overall principle is to orderly proceed within the framework of the people’s congress system” (总的原则是要在人民代表大会制度框架内有序推进这项工作).
Recording and Review (备案审查) vs. Constitutional Review
Affirming what we recently wrote on recording and review (R&R), Liang stated that constitutional review is currently one of the two categories within R&R (the other being legality review (合法性审查)). Both constitutional review and R&R seek “to ensure strict enforcement of the Party Central Committee’s and the Central Government’s decisions, to ensure the correct and effective implementation of the Constitution and laws, to safeguard the authority and sanctity of the Constitution and laws, and to protect the people’s lawful rights and interest.”
Liang then explained the differences between constitutional review and R&R. He said that R&R by the NPCSC is much narrower in scope than constitutional review, for it does not cover normative documents other than local regulations, administrative regulations, and judicial interpretations (as we have explained here). Constitutional review, on the other hand, has “a more expansive scope that covers laws—that is, laws enacted and decisions made by the NPCSC all fall within the scope of constitutional review; intra-Party documents may also be covered.” In addition, “certain conduct” (一些行为) may even be subject to constitutional review as well, according to Liang. Lastly, R&R and constitutional review will differ with respect to the “subject [主体, i.e., reviewing body], basis, procedure, method of the review, as well as the force of the results of review.”
Potential Forms of Constitutional Review
Liang introduced four mechanisms for conducting constitutional review:
- Constitutionality consultation (合宪性咨询): a mechanism by which the enacting organ of a normative document (which could be any type of legal authority), during drafting, asks “the relevant organ” (“for example, the NPCSC”) for an advisory opinion on whether the document or its particular provisions are constitutional.
- Ex ante review (事前送审): a mechanism by which “the relevant organ” conducts constitutional review of a normative document after it has been adopted but before it is promulgated and enters into force.
- Ex post review (事后审查): a mechanism by which state organs, citizens, or social groups submit requests for review if they consider that a normative document violates the Constitution (essentially the “constitutional review” portion of the current R&R system, perhaps without the “recording” requirement).
- Finding “support and basis” in the Constitution for the Party’s and the State’s major decisions.
Reporting system. Liang contended that “it is unquestionable that the Constitution has always been complied with, enforced, and followed in good faith in China.” But he did also recognize that “situations where the Constitution is violated do occur occasionally.” Therefore, according to Liang, “it is extremely necessary to establish a reporting system on the status of the implementation of the Constitution [宪法实施情况报告制度]” so as to “promptly sum up the experience of implementing the Constitution” and to “point out the existing problems” for prompt correction.
Constitutional interpretation. Liang argued that to judge whether a normative document conforms to the Constitution, the relevant constitutional provision must first be interpreted. Thus, “the corresponding standardized and institutionalized procedures and mechanisms for interpreting the Constitution must be established.” “It could be said that the normalization [常态化] of constitutional interpretation is inherent in constitutional review,” Liang said.
- Liang’s words suggest that establishing a functional constitutional review system now occupies a vital position in the Party’s “law-based governance” program. “Main handle” roughly means the main task or approach, whereas “main switch” means something that controls the success or failure of the whole endeavor. Further, given his use of the phrase “historic change,” it seems that the importance of constitutional review cannot be underestimated. There is one caveat, though: Liang is in no way a senior Party official, not even within the NPCSC. It thus awaits to be seen whether his characterizations endure in official discourse.
- The potential reforms outlined by Liang are sufficiently detailed that they do not seem to be empty talk. At least some of those reforms will be implemented, we think. Also expect to hear “constitutional review” a lot in the coming months and years.
- Because, according to Liang, constitutional review will operate “within the framework of the people’s congress system,” the NPC(SC) will retain their power to supervise enforcement of the Constitution. Thus, don’t expect any court—whether it be the Supreme People’s Court or any specialized constitutional court—to be given the power of constitutional review. But the courts could realistically be empowered to screen requests for constitutional review and refer meritorious ones to the NPC(SC), especially if “certain conduct” would also be subject to review—a task in our opinion not suited to any legislative body.
- But would there be any reallocation of power within the NPC? The answer does not seem so certain. First, it is not clear why Liang cited the NPCSC as merely one of the bodies that could provide “constitutionality consultation” when in fact the NPCSC is the only body having constitutional interpretation authority. Second, due to institutional self-interest, it is doubtful that NPCSC could rigorously review its own enactments and decisions. Thus, it is possible that a new specialized constitutional review body would be established under the NPC (as some scholars have recommended)—one more thing to look for in the upcoming constitutional amendment.
- When viewed in the larger context of the Chinese government’s continued efforts to suppress the exercise of and advocacy for constitutionally guaranteed rights, the proposed reforms that Liang mentioned raise some not entirely groundless concerns. We worry that the NPCSC could twist constitutional provisions in a way that effectively rewrites them (as it did the Hong Kong Basic Law in 2016). And the fourth form of constitutional review—finding constitutional support and basis for the Party’s policy decisions—suggests this might actually happen. Or the NPCSC could give so expansive a reading of the State’s interests under article 51 of the Constitution—which bars the citizens from damaging the State’s interests when exercising their own freedoms and rights—that it effectively erases certain rights from the Constitution. At that point, the government would be able to argue, with confidence, that repressive legal regimes are perfectly constitutional.