Wednesday, July 15, 2020

Shasha Li: Commentary on Zheng Yi, On the Connotation of the Central the Local in Constitutional Text: Observation Based on Paragraph 4 of Article 3 of the Constitution of China [郑毅 论我国宪法文本中的“中央”与“地方” ——基于我国《宪法》第3 条第4 款的考察]

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 of 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."The conversation continues to generate interesting issues of constitutional law central to Chinese constitutionalism but of great value to those engaged in comparative thinking.

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]

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); sixth Commentary (HERE).

For her seventh commentary, Professor Li considers Zheng Yi, On the Connotation of the Central the Local in Constitutional Text: Observation Based on Paragraph 4 of Article 3 of the Constitution of China [郑毅 论我国宪法文本中的“中央”与“地方” ——基于我国《宪法》第3 条第4 款的考察].

Abstract: The connotation of the Central & the Local in Constitutional text is significant to the research on the central-local relationship and the recent reform in full swing on division of authority of affairs and responsibilities for spending between the central and local governments. Based on the structure of Chapter 3 of the Constitution,in addition to recognizing the central attribute enjoyed by the NPC and its Standing Committee, the Chairman and the Vice-chairman of Central Military Commission of the CPC,the State Council,the National Supervisory Commission, the Supreme People's Court and the Supreme People's Procuratorate,it is also necessary to further respond to issues such as the independence of the NPC Standing Committee,the attribute of ministries and commissions of the State Council,and the attribute of relationship between central and local judicial authorities.Moreover,the CPC Central Committee and Chinese People's Political Consultative Conference are central in the sense of institutional practice.The gap between the text and the practice should be interpreted by returning to Paragraph 4 of Article 3 of the Constitution,with focus on the differentiated interpretation of the two "central" in such paragraph. Besides the formats of local governments set forth in Article 30 of the Constitution,the Special Administrative Regions set forth in Article 31 and Taiwan Region set forth in Section IX of the Preamble are local in the broad sense. The relative independent personality, interest and finance recognized by the law provide institutional basis for regarding "local" as the counterpart of the "central" .
Keywords: Central; Local; Paragraph 4 of Article 3 of the Constitution; Text Interpretation
[摘要: 明确“中央”与“地方”在宪法文本中的规范内涵对中央与地方关系的研究以及目前正在 进行的央地事权与支出责任划分改革意义重大。基于我国《宪法》第三章的规范结构,除肯定全国人 大及常委会、中央军委主席与副主席、国务院、国家监察委员会、最高人民法院和最高人民检察院的 “中央”属性外,仍须进一步回应全国人大常委会的独立性、国务院组成部门的属性、司法机关的中央 与地方关系属性等问题。此外,中共中央和全国政协还构成了制度实践意义上的“中央”,文本与实 践落差的解读应回归我国《宪法》第3 条第4 款,核心是对该款中两个“中央”表述的差异化解释。我 国《宪法》第30 条的地方建置类型,以及第31 条的特别行政区和序言第九段的台湾地区均属广义的 “地方”内涵。规范上相对独立的人格、利益与财政为地方作为“中央”的对应项提供了制度基础。
关键词: 中央; 地方; 宪法; 文本解释]
Here one finds  an interesting application of constitutional gap filling for the coherent operation of a complex administrative apparatus.  Western liberal democracies have not been immune from this process, though the genesis of is approach corresponds to the growth of consolidated late modern states in the 19th century and the rise of a growing state for regulation rather than custom, and for rules rather than judgments to resolve disputes as the most efficient way of organizing social-economic-political collectives. Within that framework the complexities of delegating regulatory power presented both vertical and horizontal diffusion issues the framework of which has remained fairly stable in the West for over a century (despite lots of "fireworks" at the margins as recent Supreme Court cases in the US illustrate (e.g., here). But the Chinese situation presents a somewhat different set of complexities.  These touch on both the usual issues of vertical diffusion (central authorities versus the provinces), but also of delegation and distribution of authority among administrative and political authorities (especially as between the state and CPC organs and hybrid institutions). This article, and Professor Li's commentary, provide an excellent window for understanding the nature fo the complexities and the challenges they pose.

Professor Li's English language Commentary follows below along with the original article (Chinese language only; English language Abstract).
Shaha Li: Commentary "On the Connotation of the Central the Local in Constitutional Text——Observation Based on Paragraph 4 of Article 3 of the Constitution of China, Zheng Yi associate professor of Law school of Minzu University of China

In recent years, the development of the system of central-local relations in China is accelerating with the reform of the division of central authority and expenditure responsibility.  In this period, the study of Chinese constitution is undergoing a transformation from the doctrine of fundamental rights to the state institutions. So scholars have also begun to pay more attention to the two core terms "central" and "local" in China's Constitution. In this process, in response to Article 3 paragraph 4 of the Constitution, scholars have also actively clarified key concepts such as "central", "local", "unified leadership", "initiative” and "enthusiasm".

Regarding the connotation of "central" and "local", the most basic term in the field of central-local relations, it is difficult to find clear definition of the connotation and extension of these two concepts in legal documents such as the Constitution, Organic Law of local people's congresses and local people's governments at all levels, and the documents of the Communist Party of China. The author conducts a comprehensive analysis of these two terms from texts and practices.

The author first proceeded from the text of the constitution and analyzed the meaning of "central". According to China's mainstream academic views, the "central" is based on unitary system. Chinese scholars also have a relatively unified understanding of the unitary structure of China: the unitary system means that the country has only one constitution, has a unified legislative power, a unified national institution system and a unified judicial system, and the local government accepts the unified leadership of the central government. The power of local governments comes from the central government. In terms of diplomacy, the central government is the only main body. In addition to the political system guarantee, the unified leadership of China's central government is legally achieved through the following channels: the unity of the law——the National People's Congress is the highest state authority and has the power to interpret and supervise the implementation of the Constitution and laws; Unified leadership in administration——The State Council leads the work of local administrative organs at all levels throughout the country; Judicial unity——The Supreme People's Court can raise and supervise cases tried by any local court.

On the basis of preliminary analysis, the author also noticed that the connotation and extension of the term "central" in the Constitution are not unified, and the scope of reference has also changed as the context changes. First, although the terms "central" of Article 3 and Article 89 of the 1982 Constitution are consistent literally, the connotations are different. The "central" of Article 3 was born out of Article 16 of the "Common Program" and had the broad meaning of the "big government" in the early days of the founding of the People's Republic of China; and based on the consideration of legislative language and rhetorical techniques, the "central" in Article 89 Item 4 which stipulates “ formulate the detailed division of functions and powers between the Central and the organs of state administration of provinces, autonomous regions and municipalities" means that the "central" is an abbreviated expression of "central national administrative agency". Only the identity of the Central Military Commission which is a part of the connotation of the "Central" has been repeatedly confirmed by Chapter 3, Section 4 of the 1982 Constitution, and there is no ambiguity in the meaning. Second, from the perspective of the structure of the 1982 Constitution, whether it is "central" or "local", its normative sources are mainly from Chapter 3 "state institutions". In this sense, in addition to the Central Military Commission in Section 4 of the chapter, the National People’s Congress and its Standing Committee in Section 1, the President and Vice- President of the People’s Republic of China in Section 2, the State Council in Section 3, The National Supervision Committee of Section 7 and the Supreme People's Court and Supreme People's Procuratorate of Section 8 obviously belong to the category of "central".

In addition, in terms of text, the author also analyzed several specific issues: Are the National People's Congress and the Standing Committee of the National People's Congress one "central organ" or two "central organs"? How do you understand the Central Military Commission as the "central" in the     context                 of      central-regional     relations?             Are        the  constituent departments of the State Council the essential elements of the "central" connotation? How to understand the central-local relationship of the people's courts and people's procuratorates? At last the author talked about the central attributes of the National Supervision Committee, which is provided             clear  and             standardized      support         by    the                 revised   Chinese Constitution and the newly promulgated Chinese Supervision Law.

In addition to the analysis at the level of constitutional text, the author analyzes the two most frequently encountered problems in practice. One is the meaning of “central” in "Central Committee of the Communist Party of China". At the level of laws and regulations within the party, the connotation of the "Central Committee of the Communist Party of China" is relatively clear, and generally includes the Party's National Congress, the Central Committee and the Central Discipline Inspection Committee, the Central Political Bureau and its Standing Committee, and the Central Secretariat. However, the question is, is there a basis in the constitution text for the "Central Committee of the Communist Party of China" as the state’s central in central-local relationship? Article 36 of the "Constitutional Amendment" adopted by the 13th National People's Congress on March 11, 2018 clarified the leadership of the Communist Party of China in all aspects of the country. That means at all levels of the central and local authorities, the party committees have the highest leadership position, and the internal party organization system can thus be externalized to central and local relations.           The    CPC  Central        Committee   has    become                China's       most concentrated organization of state power, and it has implemented political leadership of local governments through local party organizations at all levels. Therefore, this reflects the unitary nature of China’s state power. It can be seen that in the dual state structure in China the state power represented by the Communist Party is the most fundamental. It can be understood that in the authority structure design of the CPC Central Committee as the "central", the corresponding "local" includes not only local party committees and local state organs at all levels, but also social organizations, enterprises and institutions and all other subjects and matters, and therefore has the broadest externalities.

The other practice issue is the relationship of the National Committee of the Chinese People’s Political Consultative Conference to local committees and the relationship of local committees to local committees at lower levels. According to the relevant regulations, in the dual dimension of the National Committee of the Chinese People's Political Consultative Conference and the local committee, there is an internal central-local relationship. A non- institutional but non-negligible basis for the central attributes of the National Committee of the Chinese People's Political Consultative Conference is the configuration of the Central Committee of the Chinese Communist Party who is the core of the nation leadership——Since the 14th Politburo Standing Committee of CPC Central Committee, although there have been changes in the number of standing committee members and the organizations of their respective representatives, the system of having a standing committee member in charge of the National Committee of the Chinese People's Political Consultative Conference has been a political practice that has continued.

Regarding the interpretation of the term “local”, the author believes that Article 30 of the Constitution is the core clause to understand the multiple aspects of “local”. In this regard, the author believes that in terms of institution system, China's central-local relations have shown the "integral and pluralistic" characteristics. The so-called "integration" refers to "unified multi-ethnic state", and "plurality" refers to the institutional reality of the coexistence of various local systems in China. The macro central- local relationship is further categorized into three categories: the relationship between the central and general localities, the relationship between the central and ethnic autonomous areas, and the relationship between the central and special administrative regions.

Through the interpretation of the text and practice, the author finally put forward the proposition of local independence. As a unitary state in the traditional sense, local authorities have been theoretically regarded as an extension of the central authority. However, since the proposition of "central-local relationship" is established, it necessarily means that "local" and "central" have a certain degree of relative independence. The unified leadership of the central government and the display of local initiative and enthusiasm are placed in a parallel logical framework in China’s constitution, which highlight the relatively independent personality of the local authorities. There is no clear term of “unitary system” in the text of China’s Constitution, and this “strategic ambiguity” may just provide an ample constitutional space to establish a state organization that is dominated by unitary system and allows for the absorption and combination of some excellent elements of federalism.


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