What Can the People's Procuratorate Do in the Chinese Constitutional Review Mechanism?

• Author: Wang Xuanwei
• Pages: 85-98

WANG (DO NOT DELETE) 4/19/2012 6:01 PM

2012 CONSTITUTIONAL REVIEW 85

WHAT CAN THE PEOPLE’S PROCURATORATE DO

IN THE CHINESE CONSTITUTIONAL REVIEW MECHANISM?

Wang Xuanwei

∗

Abstract

The current constitutional review mec hanism in China is so defective that it is incapable of solving the serious problem of recurring

unconstitutional incidents. Thus, it is essential to introdu ce a new institutional solution to improve the constitutional review

mechanism. Under the Chinese constitutional framework, the People’s Procuratorate is the most appropriate organ to initiate

complaints of constitutional review. The People’s Procurato rate shall, in accordance with the Chin ese Legislation Law, initiate a

timely pilot program under whic h the new constitutional review mechanism will be tested, then gradually establish and improve the

procuratorial role in the new constitut ional review mechanism.

I. INTRODUCTION

In the process of pursuing a “rule of law” governance scheme in the People’s Republic of

China (“PRC”), a problem to which more attention should be paid is the recurring occurrence of

many unconstitutional 1 incidents. In the Chinese legal system, various normative legal

documents 2

Entering the new millennium, a handful of measures have been taken in an attempt to

improve the constitutional review mechanism – the Legislation Law

contradict their superior counterparts – for example, administrative regulations

contradict the legislations, judicial interpretations “amend” the laws that they set out to interpret,

and ministerial administrative regulations often conflict with the Constitution and the

laws. Despite such problems, the Chinese constitutional review mechanism is extremely limited,

and unfortunately, is rarely effective in mending them.

3 was enacted in 2000, the

State Council promulgated the Regulation on the Procedures for the Formulation of Ministerial

Rules and the Regulation on the Archivist Filing of Regulations and Government Rules 4 in 2001,

the Standing Committee of the National People’s Congress (“NPCSC”) established a sub-section

under its Committee for Legislative Affairs in 2004, and the Law on the Supervision of Standing

Committees of People’s Congresses at Various Levels 5

The author suggests that under the mainland Constitutional structure, the People’s

Procuratorate is the most appropriate body to initiate a complaint for constitutional review. In

was enacted in 2006. Unfortunately,

these measures have not improved the effectiveness of the current constitutional review

mechanism, and therefore, it is essential to introduce a new institutional solution to promote

better constitutional review.

∗ Ph.D. Candidate, Law School of Tsinghua University, the PRC; Master of Common Law, Hong Kong University, the PRC , 2007; LL.M and

LL.B, Yunnan University, the PRC, 1998, 1995.

1 The word “unconstitutional” in this paper basically refers to “normative legal documents at lower level contradict legal documents at

higher level”, unless the context indicates it means “cont radict the Constitution”.

2 In the light of Article 2 of Legislation Law, normative legal document s include laws, administrati ve regulations, local regulation s,

autonomous regulations, separate regulations, ministerial rules and local administrative rules. In addition, judicial interpretation is another

important legal document as well, although it is not mentioned in Legislation Law.

3 Lifa Fa (立法法) [Legislation Law] (promulgated by th e Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000)

2000 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 311., art. 48 (China) [hereinafter Legialation Law] .

4 Fagui Guizhang Bei’an Tiaoli (法规规章备案条例) [Regulation on the Archivist Fili ng of Regulations and Government Rules]

(promulgated by St. Council., Dec. 14, 2001, effective Jan 1, 2002),

http://www.chinalaw.gov.cn/art icle/fzjd/bagz/200603/20060300057123.shtml (concerning the procedures for the formulation of administrative

regulations) (China).

5 Geji Renmin Daibiao Dahui Changwu Weiyuanhui Jiandu Fa (各级人民代表大会常务委员会监督法) [Law of the People’s R epublic of

China on the Supervision of Standing Committees of People’s Congresses at Various Levels] (promu lgated by the Standing Com m. Nat’l

People’s Cong., Aug. 27, 2006, effective Jan . 1, 2007) 2006 STANDING COMM., NAT’L PEOPLE’S CONG. GAZ. 536 (China).