Tag: constitutional review

Dissecting the Chinese Legislature’s First Annual Report on Constitutional Enforcement

China’s national legislature, the National People’s Congress (NPC) and its Standing Committee (NPCSC), has the constitutional power and duty to “oversee the enforcement of the Constitution.” Yet for decades this task had remained a low priority for the legislature. Since Xi Jinping took power in late 2012, he has “elevated the Party’s rhetorical commitment to the Constitution” on numerous occasions. For instance, in writing to commemorate the current Constitution’s 40th anniversary in December 2022, Xi stressed the need to “continuously enhance constitutional enforcement and supervision”—and to, of course, do so under the Party’s leadership. Against this backdrop, the NPCSC has made constitutional enforcement a more significant and visible part of its work; its annual work reports to the NPC have included dedicated sections on “constitutional enforcement” [宪法实施]1 since 2020.

On February 23, possibly starting a new yearly practice, the legislature posted on its official website a report on its efforts to “strengthen and innovate constitutional enforcement” in 2023, written by the NPCSC Legislative Affairs Commission’s Office for Constitution.2 The report is worth reading for it not only discloses new constitutional practices from the past year that may have escaped most people’s attention, but also catalogs the kinds of activities that officially constitute “constitutional enforcement.” The report also likely serves as the basis for the section in the NPCSC’s forthcoming 2024 work report on constitutional enforcement. Below, we will discuss the report through a mix of summary and translation: parts that we found particularly noteworthy will be translated and annotated, whereas the rest will be summarized to varying extents. We added some paragraph breaks and text formatting in blockquotes to improve readability.

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Recording & Review Pt. 2: The Demise of “Conditional Arrest”

Supreme People’s Procuratorate building. Photo by SPP, via Sohu.

In the first installment of the Recording & Review series, we presented a comprehensive introduction to the recording and review (R&R) [备案审查] process in the NPC Standing Committee (NPCSC). Beginning with this installment, we will examine cases where citizens and organizations successfully challenged the legality of normative documents using the R&R procedure. While these cases might not be new, a close examination of them will still offer us important insight into the R&R system—on how it actually operates and what its limitations are.

In July 2017, the Southern Metropolis reported that the Supreme People’s Procuratorate (SPP) had recently discontinued a controversial type of arrest after the NPCSC—more specifically its Legislative Affairs Commission (LAC)—reviewed its constitutionality and legality at the request of Mr. Miao Yongjun, an Inner Mongolian lawyer. Before recounting Mr. Miao’s encounter with the R&R system, we will first briefly introduce the now-abolished type of arrest invented by the SPP.

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NPCSC Now Researching Expansion of Constitutional Review

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.

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Recording & Review: An Introduction to Constitutional Review with Chinese Characteristics

Editor’s Note (Sept. 2, 2020): This post is NOT up to date and has been superseded by a more recent introduction to “recording and review,” which discusses the latest governing rules.

On October 18, 2017, halfway through his mind-numbing three-hour report to the Communist Party’s 19th National Congress, President Xi Jinping called for “advancing the work of constitutional review” [推进合宪性审查工作]. We then noted, and Chinese media later confirmed, that it was the first time such expression appeared in Party documents. While the expression might be novel, the concept of constitutional review is not—it has been an inherent part of “recording and review” (“R&R”) [备案审查] since at least 1982. For purposes of our discussion,[1] R&R is a process whereby various governmental entities with lawmaking powers record the legislation they enact with the NPC Standing Committee (NPCSC), and the NPCSC then, through several established mechanisms, review such legislation for potential violations of the Constitution and national laws and take appropriate actions. The primary goal is to ensure uniformity in the hierarchical legal system.

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