Shasha Li: Commentary on Xie Yu, "The Current Situation Dilemma and Solutions of the Supreme People’s Court in the Constitutional Review——Also on the Interpretation of Paragraph 1 of Article 99 of the Legislation Law" (谢宇 最高人民法院在合宪性审查中的现状、困境与出路 ———兼对我国《立法法》第99 条第1 款解释).

Over the course of the last several years, Chinese scholars have been engaging in a very interesting discussion about the way that constitutional sensitivities to human rights affects Chinese law and practice in a number f areas. The conversation intensified after 2004 when the State Constitution was amended to include a third paragraph in its Article 33 that provides: "The State respects and preserves human rights."

This year I have the great privilege of hosting a marvelous visiting scholar from China, Shasha Li. Professor Li is an Associate Professor of Law School of Dongbei University of Finance and Economics. She obtained her Bachelor of Law from Zhongnan University of Economics and Law, her Master of Law at Nankai University; ad her Doctor of Law at Jilin University. Professor Li may be contacted at fishsuncat [AT] 126.com.

I have prevailed on Professor Li to offer readers in English a glimpse at some of the rich discussion among academics who are considering the application of principles of human rights with Chinese characteristics and compatible with the Chinese political and normative system. Earlier Commentary may be accessed: first Commentary (HERE); Second Commentary (HERE ); third Commentary (HERE); fourth Commentary (HERE); fifth Commentary (HERE).

For her sixth commentary, Professor Li considers Xie Yu, "The Current Situation Dilemma and Solutions of the Supreme People’s Court in the Constitutional Review——Also on the Interpretation of Paragraph 1 of Article 99 of the Legislation Law" (最高人民法院在合宪性审查中的现状、困境与出路 ———兼对我国《立法法》第99 条第1 款解释).  It was published in the Journal Politics and Law 5:84-93 (2020) (政治与法律2020 年第5 期). Xie Yuyu holds an academic position at Guangdong University of Foreign Studies, Guangzhou, China.  The article was produced as part of an initiative of basic research of humanities and social sciences of the Ministry of Education entitled "Comparative Research on the Representative System of Various Countries and the System of the National People's Congress of China." The issue considered by Professor Xie and analyzed quite usefully by Professor Li is an important one in China--the institutionalization of constitutional review.  The question revolves around what has become a defacto sharing of formal authority between the Standing Committee of the NCP (with formal authority) and the increasingly aggressive Supreme People's Court (with de facto authority arising from its formal position within the state apparatus). Professor Xie attempts to rationalize the emerging practice within the formal structures of the Chinese constitution based in part on a review of 147 Supreme People's Court decisions.

Abstract: China's "Legislation Law" presupposes that the Supreme People's Court will request the NPC Standing Committee to conduct a constitutional review. Judging from the existing judgment documents, the Supreme People's Court has not followed the path preset by China's "Legislation Law" in practice, but has avoided the request for constitutional review in the vast majority of cases, while in individual cases Conducted a constitutional review and fell into the dilemma of completely avoiding and direct reviewing. The reason for this dilemma is that my country's "Legislation Law" lacks clear provisions on the power base and power exercise procedures of the Supreme People's Court in the review of constitutionality. In this regard, it is urgent to clarify and elaborate through legal interpretation, otherwise the Supreme People’s Court will have no rules to follow and cannot rush to the NPC Standing Committee for constitutional review. In order to resolve this dilemma faced by the Supreme People's Court, it is necessary to interpret Article 99, paragraph 1, of China's Legislation Law, and to deduce that this clause implies another The interpreted power is the pre-trial power, which together constitutes the power foundation of the Supreme People's Court in constitutional review; at the same time, in order to institutionalize the exercise of the pre-trial power and the power to request review, it is necessary to refine its exercise procedures, Establish a pre-review-draw review mechanism.
Keywords: Constitutional review; Supreme People's Court; power of pre-trial; power of application for review; constitutional supervision．

[摘要:我国《立法法》预设了最高人民法院提请全国人大常委会进行合宪性审查的路径。从现有裁判文书来看,最高人民法院在实践中并未遵循我国《立法法》所预设的路径,而是在绝大多数案件中回避了合宪性审查诉求,同时又在个别案件中进行了合宪性审查,陷入了完全回避与直接审查的两难困境。造成这种困境的原因在于,我国《立法法》对最高人民法院在合宪性审查中的权力基础、权力行使程序缺乏清晰的规定。对此,亟待通过法律解释进行明确和细化,否则最高人民法院将无章可循,无法贸然提请全国人大常委会进行合宪性审查。为了化解最高人民法院面对的这一困境,有必要对我国《立法法》第99 条第1 款进行解释,推导出该条款在授予最高人民法院提请审查权时,还隐含着另一项未被释明的权力即预审权,其共同构成最高人民法院在合宪性审查中的权力基础;同时,为了使预审权与提请审查权的行使制度化,有必要对其行使程序进行细化,建立起预审-提请审查机制。
关键词:合宪性审查;最高人民法院;预审权;提请审查权;宪法监督]

Here one finds  an interesting application of politics around the text of dispositive documents.  This is something quite common in liberal democratic states, note the way that the interpretation and use of Presidential power in the United States has been transformed under the last two American presidents in part through the acquiescence of other actors and institutions.  Its operation under the political conditions of China, is less well understood.  Even less well understood is the role (formal, effective, traditional, or anticipated) of the Communist Party in this context. One would think that this is an area at the heart of the collective leadership of the CPC and that its guidance would be both generously developed and widely shared.  But that may not be the case.

Professor Li's English language Commentary follows below along with the original article (Chinese language only; English language Abstract).

Commentary on "The Current Situation Dilemma and Solutions of the Supreme People’s Court in the Constitutional Review——Also on the Interpretation of Paragraph 1 of Article 99 of the Legislation Law" Xie Yu (Guangdong University of Foreign Studies)

Shasha Li

Paragraph 1 of Article 99 of the Legislation law regulates: Where the State Council, the Central Military Committee, the Supreme People’s Court, the Supreme People’s Procuratorate, the various special committees of the Standing Committee and the Standing Committee of the People’s Congress of various provinces, autonomous regions and municipalities directly under the central government deems that an administrative regulation, local decree, autonomous decree or special decree contravenes the Constitution or a national law, it may make a written request to the Standing Committee of National People’s Congress for review, and the office of operation of the Standing Committee shall distribute such request to the relevant requirement for the launching subject of constitutional review. The above-mentioned subjects can submit an application for constitutional review to the Standing Committee of the NPC, so this clause is often discussed. Starting from this article, the author believes that the existing research on constitutional review always focuses on the Standing Committee of the NPC, and lacks attention has been paid to the practice and problems of the courts in China's constitutional review. In order to make up for the shortcomings of the existing research, the author took the Supreme People's Court as an entry point and studied 147 judgements concerning constitutional review published by the Supreme People's Court from 2015 to 2019. The author sorted out these judgments and summarized the attitude of the Supreme People's Court in the constitutional review, and then analyze the role of the court in the constitutional review. The author’s main point of view is that the effective operation of the constitutional review system depends on both the NPC Standing Committee and other important subjects such as the court. Among them, the court is an important part of joining the subject of constitutional review with the object of constitutional review. However, at present, the Supreme People's Court of China has a dilemma in responding to the request for constitutional review. It should resolve this dilemma through the interpretation of paragraph 1 of Article 99 of the Legislation Law.

After sorting out 147 judgments, the author summarized the characteristics of the  constitutional review claims that have appeared in the litigation in recent years, and found that the parties' constitutional review claims have been no longer staying at the stage of symbolically citing the constitution, but becoming more and more normative and accurate, which also requires the Supreme People's Court to take the parties' constitutional review claims seriously. Second, the parties can clearly point out the unconstitutional public organs and unconstitutional acts. Moreover, judging from the existing trial practice, the parties' constitutional review appeals are mostly against the actions of the administrative organs.

Regarding the way the Supreme People's Court responds to requests for constitutional review, Article 99 of the Legislation Law already has a basic regulation. However, in the face of appeals for constitutional review by the parties, the Supreme People’s Court did not follow the path presenting by Legislation Law, but took two other very different approaches: in most cases, the Supreme People’s Court completely evaded the parties’ request for constitutional review, and did not respond to the issue of constitutionality. It neither submitted to the Standing Committee of the NPC for constitutional review nor informed the reasons for not submitting; On the one hand, in individual cases, the Supreme People’s Court inappropriately and directly conducted a constitutional review, declaring that relevant norms violated China’s Constitution. Among the 147 judgments collected by the author, the Supreme People's Court avoided the requests of constitutional review in 146 judgments, and did not make any response to the issue of constitutionality, but made a judgment on other grounds. However, in the case of the Yuanfeng Stock Cooperative Economic Union, the Supreme People's Court unexpectedly responded positively to the appeal of constitutional review. But, it did not request the Standing Committee of the NPC to conduct a constitutional review based on Legislation Law, but directly conducted a constitutional review by itself. The Supreme People's Court stated in the judgment document that: “the Yuanfeng Village Year-end Benefit Distribution Method” does not conform to the spirit and principles of our Constitution....

Whether the Chinese court has the power to conduct constitutional review is basically uncontroversial. The view that the court has the power to conduct constitutional review has been widely criticized in China since the beginning of the 21st century. At the current stage, the Supreme People’s Court can not directly exercises the constitutional review power without sufficient theoretical and institutional support. However, the court's attitude of deliberately avoiding the appeal of constitutional review makes it difficult for the court to play its role in the constitutional review system, which affects the effective operation of China’s constitutional review system. The failure of the court to give full play to the power of constitutional review and screening mechanism is not conducive to assisting the Standing Committee of the NPC to fully exercise the power of constitutional review.

There are two main reasons of the attitudes to constitutional review appeals of Supreme People’s Court. From a system perspective, the provisions of Legislative Law itself are ambiguous. Before the legal interpretation is made clear and detailed, the Supreme People’s Court has no rules to follow and will not rush to the NPC Standing Committee for constitutional review application. For example, according to Article 99 the premise of the Supreme People’s Court requesting the Standing Committee of NPC to conduct a constitutional review must be that the Supreme People’s Court considers the relevant norms conflict with Constitution. This judgment looks very similar to the exclusive constitutional review power of the Standing Committee of the NPC. If the Supreme People's Court rashly exercises this power with unclear connotations and boundaries, it will easily lead to unnecessary power disputes. As another example, the procedure for inviting the Standing Committee of the NPC to conduct constitutional review is not expressly provided. There is no clear rules on the methods and procedures for the Supreme People's Court to submit constitutional review application to the Standing Committee and no regulations on whether the trial should be suspended at the time of filing. The second reason is the historical factors. For the Supreme People’s Court to play a role in the constitutional review, it often involves the relationship with the legislature and the executive, and its handling is relatively complicated. Many years ago, the Supreme People's Court was criticized by all parties for directly exercising the constitutional review power in the Qi Yuling case, making the Supreme People's Court dare not make any difference in dealing with the constitutional review issue.

The author believes that to resolve this dilemma, it is necessary to explain paragraph 1 of Article 99 of Legislation Law, and deduces that when this clause grants the Supreme People’s Court the power to apply for review, it must also imply another unexplained power. That is the pre-trial power which constitute the power base of the Supreme People's Court in constitutional review. There is a prerequisite for the Supreme People's Court to exercise the power of applying for review, that is, the Supreme People's Court must consider that the relevant norms are in conflict with the Constitution. That means the Supreme People's Court has to reach a conclusion that the relevant norms are inconsistent with the Constitution. To reach this conclusion, the Supreme People's Court must review and judge whether the relevant norms are constitutional. The clarity of the pre-trial power has set the limits of the power of the Supreme People's Court, which is conducive to preventing the Supreme People's Court from overstepping its own power and infringing the constitutional review power of the Standing Committee of the NPC.

Based on the existing cases of the Supreme People's Court to analyze the court's attitudes and practices and the impact on the initiation of the constitutional review system, the author's perspective on how to improve the constitutional review system is relatively new. The author's conclusion that the Supreme Court's pre-trial power need to be clearly admitted should also be feasible. But the crux of the problem is not the pre-trial power, but the unclear procedure for starting the constitutional review. The judgment of the Supreme People’s Court on whether the norms are unconstitutional and the constitutional review power of the Standing Committee of the NPC are powers of different natures, just like the difference between “deems the rights have been violated” and “determine the rights have been violated”. Deeming the rights have been violated which is included in the right of litigation can start the litigation process but this is not the power of judgment. The Supreme People’s Court’s “consideration of inconsistency with the Constitution or laws” is not a judgment of “conflict with the Constitution or laws”. Therefore, there is no need to grant pre-trial power. If the starting procedure is clear, not only the Supreme People's Court, but also other subjects in Article 99 can also file an application for constitutional review to promote the start of constitutional review.