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Nulla poena sine lege is a fundamental principle of criminal law. Its application is closely related to a basic understanding of criminal justice and separation of powers. The 1997 Chinese Criminal Law adopts a modified version of this principle. This modified version includes a negative and a positive dimension, and appears to be more rigid on the surface than the classic conception of the doctrine. However, in view of China’s penal statutes, the rigidity of the Chinese nulla poena doctrine has been offset by broad sentence ranges, vague criteria for offense classes, unconstrained sentence mitigation and multi-functional sentencing circumstances. . .
A general perception exists that constitutional review is not a part of modern Chinese jurisprudence. That view is mistaken. The aim of this essay is to show that, while substantial constitutional change has not yet been established, it is arguable that a unique Chinese brand of constitutionalism has taken root and is evolving. A classic understanding of the concept of judicial review is “a court’s power to review the actions of other branches or levels of government,” including a court’s “power to invalidate legislative and executive actions as being unconstitutional.” Judicial review has become an established part of contemporary constitutionalism in Western jurisprudence.
Constitutional review, another expression of judicial review closely associated with the discussion of constitutional law, is the power of courts to examine whether legislation enacted by the parliament or acts of the executive authorities are consistent with the written constitution and, within this query, to determine their validity. This system commands a primordial condition: courts receive jurisdiction through the constitution and use that jurisdiction to determine constitutionality. Needless to say, constitutional review is an innovation derived from the American constitutional case Marbury v. Madison, which has become the standard for democratic constitution-making, and a reference for other countries looking to modernize their constitutional regime. . .
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. . .
Professor Larry Catá Backer organized a superb symposium on Constitutional Review in the People’s Republic of China for the Suffolk University Law Review. The topic is clearly an important one not just in China, but throughout the world, which witnessed a flowering of constitutionalism in the latter part of the twentieth century. Although constitutionalism in the United States remains curiously and stubbornly different from the norm around the globe, the ideas born in the forge of the American Revolution have clearly played a role in shaping constitutionalism around the world.
The title of the symposium—“Constitutional Review in China”—provides the key to understanding the participants’ contributions. Although constitutional judicial review has become the norm throughout the world’s democracies, the spread of judicial review has been accompanied by institutional variation. The idea of Marbury v. Madison, but not the form it took in the United States, has become the norm—for good or ill—throughout the world’s democracies. The articles and the title of this symposium make it abundantly clear that whatever form constitutionalism might take in China, it will look different from the form it has taken in the United States and in other polities around the globe. . .
The Communist Party of China (CPC or the Party) is the absolute power center in Chinese politics. Deng Xiaoping made the Four Cardinal Principles paramount in Chinese politics: upholding the socialist path; the people’s democratic dictatorship; the leadership of the CPC; and the Marxism-Leninism-Mao Zedong Thought. Thus the Party stands aloof, assumes general oversight and coordinates all sides of the executive agencies, the National People’s Congress (NPC), the Chinese People’s Political Consultative Conference (CPPCC), and other mass organizations. If the latter is the flesh, and the armed forces the bones, of the Chinese political body, the Party is undoubtedly its brain, main nerves and tendons. The Party leads and controls all other political (and not only political) organizations and institutions in the People’s Republic of China (PRC), allowing observers to use the once perhaps more fashionable term, “Party-State,” to capture China’s political reality.
The Party has relinquished ideology as the sole or main source of legitimacy, and for almost three decades has been enjoying support through the “performance oriented” means of what appears to be a “benevolent one party rule.” The Chinese political system could thus also be seen as one of “good governance with Chinese characteristics.” The regime delivers steady economic performance and is consistent in terms of “consumer-satisfaction”; the people, in return, refrain from getting too angry about its peculiarities. . .
On July 24, 2001, the Supreme People’s Court of China (SPC or the Supreme Court) promulgated a new judicial interpretation. This interpretation, commonly referred to as the “Reply to Qi Yuling’s Case” took effect on August 13, 2001. On December 18, 2008, however, the Supreme Court annulled twenty-seven judicial interpretations at once, including the Reply to Qi Yuling’s Case. The reason given for the annulment of the Reply was that it was “no longer applicable.” From its birth to its demise, the Reply survived seven years, four months, and five days in China’s legal system.
Although it was never actually applied to a single case after Qi Yuling’s Case, there were disputes regarding the Reply in the Chinese legal circle, which attracted almost all of the foreign scholars studying Chinese law. From the very beginning, I have been one of the major participants in this long-lasting discussion and the last resolution fully adopted my point of view. For many years, I insisted that the Reply to Qi Yuling’s Case was unnecessary and suspiciously unconstitutional.
I will address the following questions, which I believe may be difficult for foreign scholars to understand, and which may even be misunderstood by many Chinese legal professionals. First, what is the Reply to Qi Yuling’s Case? Second, what is the problem in China’s legal practice revealed by the disputes around the Reply? And third, what does the Reply mean and what does its annulment indicate?