The Transformation of China: Constitutional Review in Action

The first step is always the hardest.

– A Chinese Proverb

For a Chinese constitutional law scholar, addressing constitutional review on the international stage is a subtle matter. The reason is simple: while in many Western systems constitutional review is synonymous with judicial review, China stands as one of the few nations without judicial review. The Chinese Constitution, effective from 1982, is often viewed more as a declarative political manifesto than as a binding legal instrument. Its bill of rights, while echoing the fundamental rights enshrined in other constitutions, is frequently regarded as more symbolic than substantive due to the lack of judicial enforceability. The Chinese Constitution grants the Standing Committee of the National People’s Congress (NPC) sole authority for constitutional interpretation, though it has long been inactive in this role.

At the turn of the century, calls for judicial review gained traction among scholars and legal professionals, driving reforms in China’s judicial system. A significant turning point came in the 2001 ‘Qi Yuling Case’, when the Supreme People’s Court affirmed the direct application of the Constitution in civil rulings. This was followed by strong advocacy from a senior court official for the ‘judicialization of the Constitution’, drawing comparisons to the U.S. landmark case Marbury v. Madison.^[1] However, in 2008, the Supreme People’s Court withdrew from the case, reaffirming the limits of judicial authority within China’s constitutional framework. As a result, constitutional provisions continue to be operationalized through legislation, with the ‘Qi Yuling Case’ symbolizing the tension between judicial innovation and constitutional orthodoxy.

Although the judicial path was curtailed, an alternative route emerged, largely overlooked in English-language scholarship: empowering the legislature to conduct constitutional review. In 2000, the Legislation Law formalized the national legislature’s role in ensuring constitutional compliance, requiring all laws and regulations to align with the Constitution. It introduced mechanisms for revising or nullifying unconstitutional regulations and established a systematic process for addressing legal conflicts. In 2004, the Standing Committee of the NPC created the Regulation Filing and Review Office under the Legislative Affairs Commission (LAC) to receive petitions and ensure laws’ constitutional conformity, providing an institutional channel for constitutionality-related disputes raised by state organs, organizations, or citizens.

The LAC, typically focused on resolving conflicts between laws and lower regulations, remained inactive in constitutional review until 2017. The 19th Party Congress in October 2017 emphasized strengthening constitutional implementation and oversight, advancing constitutional review, and uphold constitutional authority, with the concept of ‘constitutional review’ (hexianxing shencha) first officially incorporated into Party documents. In March 2018, the 44th Constitutional Amendment renamed the NPC’s ‘Law Committee’ to ‘Constitution and Law Committee’, emphasizing the weight of constitutional dimension in legislative work. In June 2018, the Standing Committee of the NPC adopted a Decision, formalizing new responsibilities concerning constitutional implementation, interpretation, and review. In October 2021, the first Central Work Conference on the NPC system outlined new expectations for improving review quality and correcting unconstitutional practices. The 20th Party Congress in October 2022 further advanced this agenda, focusing on ‘improving and strengthening the filing and review system’, and launching a new phase for constitutional review. The progress was further codified in the 2023 NPC Standing Committee Decision on Improving and Strengthening the Filing and Review System and a law on filing and review is now under deliberation.

At present, constitutional review in China is divided into two stages: front-end and back-end. The front-end review occurs before and during the drafting of laws, regulations, and major policies. It ensures that proposed documents align with the Constitution. If there are concerns about constitutionality, relevant bodies shall submit a request for review to the Standing Committee of the NPC. This process involves consultation, research, and public input. Over the years, the Standing Committee of the NPC has institutionalized this review process, ensuring laws like the Foreign Relations Law and the Law on Patriotic Education undergo constitutionality tests. The back-end review focuses on existing laws and regulations. Once enacted, these documents are submitted for filing and reviewed for constitutionality. If any part contradicts the Constitution, corrective actions are taken. In recent years, the Standing Committee of the NPC has strengthened this process, responding to public concerns and ensuring that unconstitutional documents are corrected through suggestions to the drafting bodies.

Since 2017,^[2] annual reports have highlighted numerous cases of constitutional review, showcasing a significant and unprecedented aspect of recent developments: the increasing number of cases declared unconstitutional. In 2017, no such cases were reported. However, in 2018, the LAC issued its first case in response to citizens’ petitions concerning constitutional matters. This ruling addressed the abolition of the Containment Education System, though the decision was not based on its inherent unconstitutionality but on its anachronism.^[3]

In 2019, the first case of unconstitutionality was declared. Some local regulations allowed traffic authorities to access and copy communication records of individuals involved in traffic accidents; the LAC, upon review, found it to conflict with citizens’ constitutional rights to communication freedom and secrecy, exceeding legislative authority.^[4] The momentum continued into 2020, with two cases of unconstitutionality declared: one involved differing compensation standards for injuries sustained by urban and rural residents, which was found to violate the constitutional principle of equality; the other concerned local regulations requiring ethnic schools to use the language and script of the respective ethnic group, which were deemed in conflict with Article 19, Clause 5 of the Constitution, promoting Mandarin as the national lingua franca, as well as with other relevant laws.^[5] In 2021, a new case arose when citizens challenged local regulations allowing administrative departments to require paternity testing during family planning investigations, with fines for refusal. Upon review, it was determined that paternity relationships touch on citizens’ fundamental rights, including dignity, privacy, and family stability, all protected by the Constitution. Following this, the drafting authorities amended relevant provisions.^[6]

In 2022, the first case of unconstitutionality involving state organs was declared. A judicial interpretation^[7] allows higher-level people’s procuratorates to assign procurators within their jurisdiction to handle cases. Once assigned, the procurator can perform duties such as representing the procuratorate in court. Citizens have raised concerns about whether such procurators need an appointment decision from the local People’s Congress Standing Committee. The LAC held that according to the Constitution and respective law, any procurator acting on behalf of the assigned procuratorate must be officially appointed by the local People’s Congress Standing Committee. The LAC thus advised the relevant authorities to consider this in future revisions.^[8]

From 2023 to 2024, all declared cases of unconstitutionality were related to criminal matters. In 2023, the LAC continued its constitutional oversight on the prohibition of ‘collective punishment.’ Some urban district authorities imposed penalties on the relatives of individuals involved in certain crimes, restricting their rights in areas such as education, employment, and social security. The LAC held that legal responsibility for criminal acts rests solely with the offender and those restrictions violated constitutional protection of citizens’ basic rights. It urged authorities to revoke the notice and initiate nationwide efforts to prevent similar actions, ensuring law enforcement and judicial processes align with the rule of law.^[9] In 2024, two more cases followed. One involved a local regulation that excluded individuals with criminal convictions from receiving minimum subsistence allowances. The LAC found it violated Article 45 of the Constitution, which guarantees material assistance for those in need. The LAC recommended formal rectification, despite the regulation’s informal repeal.^[10] In another case, a regulation imposing blanket occupational restrictions on individuals with criminal convictions was reviewed. The LAC concluded that while some restrictions may be justified in specific cases, they must be proportionate and narrowly tailored. Broad or arbitrary bans violate citizens’ constitutional right to work. The LAC recommended revising the provisions to ensure fairness and avoid indiscriminate lifetime bans.^[11]

The evolving pattern described above highlights the expanding role of legislative bodies in constitutional enforcement and the increasing influence of constitutional review in Chinese society. By establishing a constitutional review mechanism focused on legislative oversight, China has set itself apart from nations with judicial review systems. While it is too early to predict whether this will mature into a fully developed ‘model’ of non-judicial review of constitutionality, it is clear that China has embarked on its journey of constitutional review. Despite its modest scope, this practice is gradually integrating constitutional norms into legal practice and shaping public perceptions of constitutional rights. In due course, China’s constitutional review could evolve into a more structured process, balancing political oversight with legal rigor. In a broader sense, China is pioneering constitutional review within the socialist framework, which merits the attention of constitutional comparatists and beyond.