Constitutional Review without Constitutionalism? Prospects and Limitations of a Constitutional Review Mechanism in China

The Chinese Communist Party has decided to “strengthen oversight to ensure compliance with the Constitution”, and, for the first time, “advance constitutionality review”. However, “constitutionalism” has been branded “western”, “capitalistic”, and even become a taboo since 2012. The paper summarizes the recent official blueprint and scholarly proposals, trying to envisage the future picture of the mechanism. In order to reveal the possible challenges, it also revisits constitutional review in pre-democratization Taiwan and then scrutinizes the efficacy of the current “filing and review” system under the National People’s Congress. Further, it evaluates the chances of success of various case scenarios. The paper argues that, although the rejection of constitutionalism does not per se preclude a proper constitutional review mechanism, it imposes severe limitations on the mechanism’s prospects in China, which will also vary significantly by the types of cases to be decided.