A Constitutional Court for China within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP

By Backer, Larry Cata | Suffolk University Law Review, Summer 2010 | Go to article overview
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A Constitutional Court for China within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP


Backer, Larry Cata, Suffolk University Law Review


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 ([TEXT NOT REPRODUCIBLE IN ASCII]) (2) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework. (3) 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. (4) 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. (5) 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. (6)

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. (7)

But the notion of judicial review itself veils a certain variation in its application in Western governmental systems. (8) At one extreme is the Anglo-American model, grounded on memorializations of common-law principles of "higher law" notions protected by a self constituting and heavily socialized lawyer-judicial class. (9) This model, powerful and stable, tends to be heavily dependent on the cultural framework of customary law systems, and as a result has found few state adherents outside of states with common-law traditions. At the other extreme is the political model of constitutional review--ranging from the now discarded French system of review of lois by the Constitutional Council (10) to systems in which the legislature or some other political organ is vested with power to interpret the validity of its own actions. Most states, however, have embraced a compromise model of sorts. This model, developed in modern form from the writings of Hans Kelson, (11) posits the creation of a distinct organ of state, the constitutional court, that merges the institutional forms and behavior of judicial institutions with the limited political task of interpreting the constitution generally and the legitimacy of actions by other state organs (including the judicial organs) and private parties. But even this model has engendered criticism over the last century. (12) Still, eminent Western commentators have suggested the possibility of a culturally contextualized form of constitutional review that invests some organ or another of the state apparatus with the power to deploy the constitution against all constitutional actors.

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