Eleanor Finch
Unlike Western legal systems, China's Constitution does not allow courts to exercise judicial review or invalidate a statute on the basis of constitutional violation. Instead, a special committee within the National People's Congress (NPC), defined as the highest organ of state power in the 1982 Constitution, is responsible for constitutional review and enforcement. This committee, known as the Constitution and Law Committee, operates under the leadership of the Communist Party of China (CPC) and influential members of mass organizations. While the Constitution provides for judicial independence, judges are expected to adhere to the CPC's leadership and submit to the supervision of the people's congresses and the procuratorate, which acts as a watchdog and prosecutor.
| Characteristics | Values |
|---|---|
| Name of the Organization | National People's Congress (NPC) |
| Role | The NPC is the highest organ of state power in China and is responsible for enacting and amending the country's constitution. |
| Constitutional Review Process | The NPC conducts constitutional review through its Standing Committee, which interprets and enforces the constitution between sessions of the full congress. |
| Composition | The NPC consists of nearly 3,000 delegates elected from across the country, including representatives from different regions, ethnic groups, and sectors of society. |
| Term | The delegates of the NPC are elected for a term of five years, and the congress typically holds a full session once a year. |
| Decision-Making | Decisions on constitutional amendments require a majority vote of all delegates present at the annual session of the NPC. |
| Jurisdiction | The NPC has the power to interpret, amend, and enforce the constitution, as well as oversee its implementation and provide interpretation in case of disputes. |
| Independence | The NPC is considered independent and not directly subject to the control of other state organs, although it operates within the framework of the Chinese Communist Party's leadership. |
| Limitations | The NPC's constitutional review process has been criticized for lacking transparency and not fully meeting international standards for a robust constitutional court system. |
| Recent Amendments | In recent years, the NPC has amended the constitution on several occasions, including removing term limits for the country's president and incorporating new provisions on human rights and environmental protection. |
| International Comparison | China's system of constitutional review differs from typical constitutional court systems in other countries, as the NPC's process is less formalized and more closely tied to the legislative process. |
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What You'll Learn
The Constitution and Law Committee is responsible for constitutional review and enforcement
The Constitution of the People's Republic of China is the supreme law of the land. The current constitution, consisting of 4 chapters and 143 articles, was adopted in 1982 and has since undergone five revisions. It establishes China as "a socialist state under the people's democratic dictatorship", led by the Chinese Communist Party (CCP) and based on an alliance of the working classes, or the workers and peasants.
The National People's Congress (NPC) is defined in the 1982 Constitution as "the highest organ of state power". The NPC is the supreme source of law in China, and its Standing Committee assumes legislative responsibilities when the NPC is not in session.
A special committee within the NPC called the Constitution and Law Committee is responsible for constitutional review and enforcement. Established in 2002, the committee has never explicitly ruled that a law or regulation is unconstitutional. However, in one notable case, the committee played a pivotal role in rescinding regulations that allowed police to detain persons without residency permits.
The Constitution also outlines the relationship between the central government and local governments, emphasizing the unified leadership of the central government while encouraging local government initiative and proactivity. China's state organizational structure includes various entities such as the Central Military Commission, the State Council, and the Local People's Congresses at all levels.
While the Chinese Constitution provides for the independence of the courts, judges are expected to adhere to the leadership of the Party and are subject to supervision by the people's congresses and the procuratorate. Recent efforts have been made to enhance judicial independence and address issues of corruption and competence within the court system.
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The Communist Party's 2014 Fourth Plenum Decision
In China, the Communist Party is above the rule of law. The Central Committee of the CCP noted that the rule of law should be advanced under the CPC leadership and in line with socialism with Chinese characteristics. The 2014 Fourth Plenum Decision of the Communist Party was a major document that resulted from the fourth plenary session, which usually discusses party-building. The decision, titled "Decision of the CCP Central Committee Concerning Some Major Questions in Comprehensively Moving Governing the Country Forward According to the Law", addressed the problematic government-led legislative model and aimed to strengthen the rule of law.
One of the significant reforms approved by the 2014 Fourth Plenum Decision was to weaken local government officials' control over local courts. Under the new plan, these courts became accountable to higher levels of the Party, addressing the issue of local governments using courts for corrupt purposes. The decision also introduced the concept of "special review", where the NPCSC focuses on a particular type of lower-level legislation in response to widespread social concerns or to ensure the implementation of the Party's policies.
The 2014 Fourth Plenum Decision also emphasised the \"gatekeeping\" function of legislative deliberations to ensure the quality of legislation and allow the national legislature to play a "leading role" in lawmaking. This included measures to broaden the scope of R&R and bring all normative documents within the scope of recording and review. The Decision mandated oath-taking, now governed by the NPCSC's Decision on Implementing the Constitutional Oath.
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The 1982 State Constitution
The current Constitution of the People's Republic of China was adopted on December 4, 1982, by the 5th National People's Congress. It has since been amended five times, in 1988, 1993, 1999, 2004, and 2018. The 1982 State Constitution provided a legal basis for broad changes in China's social and economic institutions and significantly revised the government's structure.
The 1982 Constitution re-established the posts of President and Vice President, which had been abolished in the 1975 and 1978 Constitutions. Deng imposed a two-term limit (totaling ten years) on all but the chair of the Central Military Commission. The Constitution also expunged almost all rhetoric associated with the Cultural Revolution, inserted in 1975, and omitted all references to it. Instead, it restated CCP Chairman Mao Zedong's contributions following a historical reassessment.
The 1982 Constitution defines the NPC as "the highest organ of state power," without identifying it as "under the leadership of the Communist Party of China," as was done in the 1975 Constitution. It also states that all power in the People's Republic of China belongs to the people. The Constitution establishes the state Central Military Commission as the key governmental body charged with "directing the armed forces."
The 1982 Constitution also refers to the procuratorates as the state organs for "legal supervision." Procuratorates exercise both prosecutorial and watchdog functions. In their prosecutorial roles, they review cases investigated by public security officials, decide whether to approve arrests and prosecute criminal suspects, and carry out public prosecutions on behalf of the government.
The Constitution affirms China's independent foreign policy and adherence to the five principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in internal affairs, equality and mutual benefit, and peaceful coexistence. It also affirms China's opposition to imperialism, hegemonism, and colonialism and its support for oppressed nations and developing countries in their struggles for independence and economic development.
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The National People's Congress
The 1982 Constitution established the state Central Military Commission as the governmental body charged with "directing the armed forces". The Constitution provides for a vital role for the Chinese People's Political Consultative Conference, minor political parties, and people's organizations. Article 35 of the 1982 Constitution proclaims that "citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration".
The right to strike was dropped from the 1982 Constitution. In February 1980, the four bigs were abolished in response to a party decision ratified by the NPC. The widespread expression of the four big rights during the student protests of late 1986 elicited strong censure from the regime due to their illegality.
Since 2002, a special committee within the NPC called the Constitution and Law Committee has been responsible for constitutional review and enforcement. Courts in China do not have the power of judicial review and cannot invalidate a statute on the grounds that it violates the constitution. While the Chinese Constitution provides that the courts are not subject to interference by administrative organs, social organizations, or individuals, judges are expected to adhere to the leadership of the Party and submit to the supervision of the people's congresses and the procuratorate.
Procuratorates are state organs for "legal supervision". They exercise both prosecutorial and watchdog functions. In their prosecutorial roles, they review cases investigated by public security officials, decide whether to approve arrests and prosecute criminal suspects, and carry out public prosecutions on behalf of the government.
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The Central Military Commission
There are technically two separate commissions: the CMC of the CCP and the CMC of the PRC. However, under the arrangement of "one institution with two names", both commissions have identical personnel, organization, and function, operating under both the party and state systems. The CMC is chaired by Xi Jinping, the General Secretary of the CCP and paramount leader. He is the commander-in-chief of the PLA, PAP, and Militia, and is also vested with command authority over China's nuclear arsenals.
The CMC is one of China's three main decision-making bodies, and its relative influence can vary depending on the time period and the leaders. The CMC's day-to-day affairs are not as transparent as those of the Central Committee or the State Council. The CMC Joint Operations Command Center, established in 2015, serves as the command center for overall PLA joint operations and supervises the Joint Operation Command Organs of each of the five command theaters.
Leadership selection within the CMC has long been considered one of the more opaque dimensions of Chinese politics. The CMC chairman is responsible to the National People's Congress (NPC) and its Standing Committee, and is officially nominated by the Presidium of the NPC during a session and approved by the delegations of the NPC. The CMC chairman is elected by the CCP's Central Committee according to the CCP constitution.
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Frequently asked questions
A special committee within the NPC called the Constitution and Law Committee has been responsible for constitutional review and enforcement since 2002.
NPC stands for the National People's Congress.
The 1982 Constitution defines the NPC as "the highest organ of state power". The Constitution also states that "all power in the People's Republic of China belongs to the people".
The Chinese Constitution provides that the courts are not subject to interference by administrative organs, social organizations, or individuals. However, judges are expected to adhere to the leadership of the Communist Party and submit to the supervision of the people's congresses and the procuratorate. Recent reforms have aimed to enhance the independence of individual judges and judicial panels.
