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.
Since the Qi Yuling case, the main focus of Chinese constitutional law has turned to the protection of fundamental rights. Doctrinal legal studies do not only cover abstract questions such as the third party effect of fundamental rights or the state’s duty to protect, but also the analysis of specific fundamental rights. In addition, there are also empirical studies, which show that fundamental rights have been cited and quoted by Chinese courts in their decisions. However, from the point of view of administrative litigation, fundamental rights are considered “legal rights and interests” according to Art. 2 of the Chinese Administrative Litigation Law. In case of a possible infringement, affected parties can bring a suit before a people’s court. The paper argues that the administrative litigation law functions as an instrument of protecting fundamental rights in China, although this protection is subject to certain limitations.
Although the Chinese constitution includes the notion of socialist rule of law, it is generally assumed that this is not a justiciable principle that courts can apply in practice. The meaning of the principle is determined in authoritative documents of the Chinese Communist Party. Based on newly available court decisions, the paper explores in what instances Chinese courts directly apply the socialist rule-of-law principle, its various elements and other related ideological concepts. The paper argues that courts use ideological concepts in the reasoning parts of judgments either in a supplementary or educational function that lends their decisions legitimacy beyond the law. Further, ideological concepts are used like constitutional principles to give meaning to indeterminate general legal terms. Ideological concepts are applied to support particularly broad or narrow interpretations of general legal terms in order to strengthen the protection of weak parties.
Although the Chinese Constitution includes a comprehensive list of political rights, courts are prohibited from applying fundamental rights in judicial practice. However, this does not mean that judges do not cite fundamental rights in the reasoning part of court decisions. According to the Supreme People’s Court open access court decision database courts have cited the constitution in more than 900 decisions between 2014 and 2016. Though fundamental rights do not form the basis of the decision, their citation constitutes a decisive legal argument in the legal reasoning of those decisions. The paper finds that where courts cite political constitutional rights, they follow the constitution’s internal logic of limiting fundamental rights in cases that only marginally impact public interest. Courts demonstrate that they are willing as well as capable to delimit the legal boundaries of political rights in the context of China’s authoritarian regime.