1. Constitutional Review without Constitutional Court: A China Practice Professor Wang Zhen-min Tsinghua University School of Law Beijing, China

2. I. Three Types of Constitutional Review The nature of constitutional disputes: Constitutional disputes are semi-political and semi-judicial in nature The ideal model of constitutional review institution: To better settle such semi-political and semi-judicial disputes, the institution in charge should also be semi-political and semi-judicial. Judges of constitutional review institutions should come from both judicial and political areas. Three types of constitutional review: 1) The US style constitutional review representing one extreme: too much judicial. How come professional judges settle very political disputes 2) The socialist style constitutional review representing another extreme: too much political, less judicial 3) The European style constitutional review is in between political and judicial models.

3. II. The Justifiability of the Chinese Constitution 1. The Constitution is the fundamental law of the state with supreme legal authority. 2. No law or administrative or local rules and regulations shall contravene the constitution. 3. The possibility for a law or administrative or local rule and regulation to contravene the Constitution. 4. If a law or administrative or local rule and regulation contravenes the Constitution, which institution has the authority and function to take action as constitutional watchdog?

4. III. The National People’s Congress (NPC) and its Standing Committee exercise the function of constitutional review 1. Constitutional review body According to the Constitution and the Law on Legislation (2000) 1) The NPC exercises the function and power to supervise the enforcement of the Constitution, particularly to alter or annul inappropriate decisions of the Standing Committee of the NPC.

5. 2) The NPC Standing Committee: the functions and powers exercised by the NPC Standing Committee include powers to interpret the Constitution and supervise its enforcement; to interpret statutes In June 2004, the NPC Standing Committee established a new working agency to review whether legislation or government decisions tally with the Constitution

6. 2. The “ jurisdiction ” of the NPC and its Standing Committee The NPC and its Standing Committee enjoy the constitutionality review power over: Their own acts; Administrative rules and regulations made by State Council; Local regulations or decisions of the organs of state power of provinces, autonomous regions and municipalities directly under the Central Government.

7. 3. The “ Plaintiffs ” 1) According to the Law on Legislation (2000), the State Council, the Central Military Commission, the Supreme People's Court, the Supreme People's Procuratorate and the standing committees of people's congresses of provinces, autonomous regions and municipalities directly under the Central Government which are of the opinion that certain administrative regulations, local regulations, autonomous regulations or separate regulations contravene the Constitution or the laws, may make a written request to the Standing Committee of the NPC for review.

8. 2) Other government bodies or social organizations, enterprises, institutions and citizens who find that certain administrative regulations, local regulations, autonomous regulations or separate regulations contravene the Constitution or the laws may make a written suggestion to the Standing Committee of the NPC for review.

9. 4. The procedure When such a written “request” or “suggestion” reaches the NPC Standing Committee and is accepted, The Law on Legislation (2000) provides a detailed procedure to proceed. More “judicial elements” to be introduced into the procedure?

10. 5. “ Cases ” 1) The Constitutionality review over the Basic Law of Hong Kong Special Administrative Region, 1990 and Macao Basic Law in 1993 2) The Sun Zhigang Case 2003 Sun Zhigang The criminals were sentenced at the Guangzhou Intermediate Court in the first trial.

11. V. The Role of the Court The Chinese judiciary must abide by the Constitution, but why the Constitutional clauses cannot be applied in courts? The Supreme Court orders in July 1955 and 1988 The Qi Yuling case: No 25 judicial interpretation of 2001 No. 15 decision of 2008 (December 8, 2008)

12. The constitutional responsibilities of the judiciary The ordinary court should take care of “concrete review”. Citizens should be entitled to file an appeal to a court when their constitutional rights are violated.

13. Conclusion: A new Chinese-style constitutional review system 1. Is a Constitutional Council (or Committee or Court) possible? 2. The new role of the ordinary court 3. The relationship between the Constitutional Committee/Court and the ordinary court