Since 2008, China’s constitutional scholarship has brought the controversy between political constitutionalism and normative constitutionalism. China’s political constitutionalism has its unique social background, which is influenced by Britain’s political constitution. However, there is not a lot of consensus within Chinese political constitutional scholarship;and, there is a different theoretical background from UK. Although China also adopts parliamentary supremacy, it has a written constitution. There exists a tension between parliamentary supremacy and constitutional supremacy in China. Since 2017, there has been a shift of Staatsrechtslehre in China, which could be seen as a continuation of this discussion. It is suggested that Böckenförde's view of “Staatsrecht as a framework” can provide a way to solve this tension. Moreover, Böckenförde’s writings on constitutional change and the separation of state and society can provide great inspiration to China’s constitutional theories.
Is China’s constitutional review in action? It shall be answered from two perspectives: normative and practical. The Chinese Constitution authorized the NPC and NPCSC to supervise constitutional enforcement. However, this supervision did not run routinely. There is no special mechanism of constitutional review in China. It is embedded in the NPCSC’s mechanism of Record and Review. In 2017, the first work report on this mechanism was delivered. A dual-track approach of “Request-Recommendation” was established in the Legislative Law 2000. However, it remained in a dormant state for 15 years. The 2015 revision is a turning point because it required the NPCSC to give the response to those who submitted the recommendation. In 2017, constitutional review was mentioned directly in the 19th Congress of CCP. It can be expected that the Record and Review will benefit from the development of constitutional review; and the mechanism will do help to achieve constitutional review.
The Chinese constitutional system is a unique mixture of the NPC regime and the norms of “constitutional supremacy”. The People’s Republic of China has been a state with “a written constitution” for decades; however, the idea of some kind of “the review of the consistency with the Constitution of legal documents” was brought into the domestic discourse in around 1980s and hardly become a spotlighted topic until the turning of the new century. The vibrant debate and cautious reform regarding constitutional review illustrated some intrinsic conflicts between the values of “constitutional supremacy” which comes mainly from overseas jurisdictions and the structure of the NPC regime that attributes principally to the “socialist-civil” law tradition.
In the end of 2017 when the first report on the review of legal document was submitted and published by the NPCSC, constitutional review quickly drew much attention from public law scholars. Whether and how the NPCSC and other standing committees at local levels can possibly take the significant function of constitutional review can be expected as one of most important topics in Chinese public law in the following years. This presentation will give a thorough study on the competence and incompetence of the NPCSC and other standing committees of local people’s congresses from an institutional perspective, and also illustrate how the NPCSC’s review can be a powerful check on administrative regulations and local rules within the current constitutional framework.