SYMPOSIUM: CONSTITUTIONAL REVIEW IN CHINA
There are great shifts in constitutional thinking taking place today in China among elite Chinese constitutional scholars. Among this group of influential constitutional law scholars, Hu Jintao’s concept of scientific development (科学发展观) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework. One of the more highly debated issues within Chinese constitutional law circles is constitutional review. The debate centers on the viability of transposing some version of the current parliamentary model of constitutional review into the Chinese constitutional system. Western models of constitutional review seem to insist on the necessity of an independent judiciary with a constitutionally sanctioned supervisory role over administrative and political organs as a condition precedent to constitutional legitimacy. The Chinese constitutional system is criticized for its lack of such a robust system of judicial review. As one commentator recently noted:
As for judicial review powers, Amended Article 5 of the 1982 Constitution reads, “the People’s Republic of China governs the country according to law and makes it a socialist country ruled by law,” and Article 127 provides that the Supreme People’s Court is the highest judicial organ. However, constitutionalism in action and text reduced a potential for a rule of law rubric to a non-rule of law rubric, reduced a potential for legal accountability to political accountability. This left China’s judicial system without a positive discursive machinery for judicial review: neither constitutional review or constitutional court, nor decentralized (or diffused) or centralized (or concentrated) constitutional review.
For Western observers of Chinese constitutionalism, the conclusion to be drawn is that there is no proper form of constitutional (or judicial) review. The remedy for such a deficiency—and thus for notions of constitutional illegitimacy within the Chinese systems—might be found by implementing any one of a number of possible changes that would produce an appropriate institutional mechanism for the exercise of review authority. That authority would be exercised by some organ of state power that is either housed within the judicial power or otherwise in a properly constituted body within the organs of state power yet separate from the legislative organs of the National People’s Congress. . .