Constitutional Supervision in China: The System of审查 and Review
Constitutional supervision (宪法监督, xiànfǎ jiāndū) in China refers to the mechanisms by which the constitutionality of legal norms and state actions is reviewed and enforced. Unlike many countries with dedicated constitutional courts or Supreme Court judicial review, China has developed a distinctive system in which the National People’s Congress and its Standing Committee exercise constitutional supervision, supported by the Legislative Affairs Commission’s filing and review (备案审查, bèi’àn shěnchá) mechanism. This system reflects the constitutional principle that the NPC is the highest organ of state power and that no external body may invalidate legislative enactments.
Constitutional Basis
Article 62 of the Constitution empowers the National People’s Congress to supervise the implementation of the Constitution. Article 67 empowers the NPC Standing Committee to interpret the Constitution and supervise its implementation. These provisions establish the NPC and its Standing Committee as the principal organs of constitutional supervision, excluding courts from formal constitutional review.
The Constitution’s supremacy clause (Article 5) provides that all state organs, armed forces, political parties, enterprises, and organizations must abide by the Constitution and law. Any act violating the Constitution or law must be investigated and corrected. This provision establishes the normative supremacy of the Constitution but does not specify enforcement mechanisms beyond NPC oversight. The 1999 constitutional amendment added the rule of law principle, strengthening the constitutional basis for legal and constitutional supervision.
The Role of the National People’s Congress and Its Standing Committee
The NPC exercises constitutional supervision primarily through its legislative and supervisory powers. As the highest organ of state power, the NPC may review the constitutionality of its own enactments and those of subordinate bodies. In practice, constitutional review by the plenary NPC is limited by the brevity of annual sessions and the volume of legislation. The NPC Standing Committee, meeting every two months, is the more active constitutional supervisor.
The Standing Committee’s power to interpret the Constitution (Article 67(1)) is potentially the most significant constitutional supervision power. A constitutional interpretation by the Standing Committee would be binding on all state organs, including courts. However, the Standing Committee has never issued a formal constitutional interpretation, preferring to address constitutional questions through ordinary legislation, legislative amendments, and the filing and review system. The reluctance to issue formal constitutional interpretations reflects political sensitivity about constitutional meaning and the preference for legislative rather than quasi-judicial constitutional development.
The Filing and Review System
The primary operational mechanism of constitutional supervision is the filing and review system (备案审查制度) administered by the Legislative Affairs Commission (法制工作委员会, fǎzhì gōngzuò wěiyuánhuì) of the NPC Standing Committee. This system requires that administrative regulations, local regulations, judicial interpretations, and other normative documents be filed with the Legislative Affairs Commission within 30 days of promulgation. The Commission reviews filed documents for conformity with the Constitution and laws.
The legal basis for the filing and review system is found in the Legislation Law (立法法), the Supervision Law (监督法), and the Organic Law of the NPC Standing Committee. The Legislation Law (Articles 98–100) requires filing of all regulations and authorizes the Standing Committee to annul regulations that contradict the Constitution or laws. The 2015 and 2023 amendments to the Legislation Law strengthened the filing and review system by clarifying review procedures and expanding the scope of reviewable documents.
Filing and review operates through four channels. First, all normative documents must be proactively filed with the Legislative Affairs Commission upon promulgation. Second, state organs including the State Council, the Central Military Commission, the Supreme People’s Court, and the Supreme People’s Procuratorate may request review of normative documents. Third, provincial-level people’s congresses and other local authorities may request review. Fourth — most significantly — citizens and organizations may submit petitions for review (审查建议, shěnchá jiànyì) of normative documents that they believe violate the Constitution or laws.
Citizen Petition Review
The citizen petition channel has become the most visible aspect of constitutional supervision. Any citizen or organization may submit a written petition to the Legislative Affairs Commission requesting review of a normative document. The Commission reviews the petition and, if it finds merit, initiates review procedures with the enacting authority. The Commission may recommend corrections, request the enacting authority to amend or repeal the document, or — for serious violations — recommend annulment by the NPC Standing Committee.
The Legislative Affairs Commission publishes annual reports on filing and review work, documenting notable cases. These reports reveal a system that has become increasingly active: the Commission has addressed petitions involving property rights, administrative fines, social insurance, employment discrimination, and restrictions on personal freedom. Notable cases include the invalidation of local regulations requiring employers to obtain household registration certificates, the correction of local nuisance animal regulations that exceeded statutory authority, and the review of local traffic violation penalty regulations.
The filing and review system operates as an administrative rather than judicial process. The Commission’s review is confidential, the petitioners are not parties to the review, and the Commission’s recommendations are not legally binding on the enacting authority in the same way as a court judgment. The effectiveness of the system depends on the Commission’s persuasive authority and the willingness of enacting bodies to comply with recommendations. The system provides individual remedies only indirectly: correction of the offending provision benefits the petitioner and similarly situated persons but does not provide individual compensation or retroactive relief.
The Absence of Judicial Constitutional Review
China does not have a system of judicial constitutional review. Courts may not invalidate legislation on constitutional grounds, declare laws unconstitutional, or award remedies directly under the Constitution. The Supreme People’s Court’s 2008 abolition of the Qi Yuling precedent confirmed that the Constitution is not directly applicable in private litigation. Courts may refer to constitutional principles in interpreting statutes but may not substitute constitutional for statutory provisions.
The absence of judicial constitutional review reflects several features of the Chinese constitutional system. The NPC’s status as the highest organ of state power is incompatible with judicial review of legislative enactments. The principle of democratic centralism places courts below the NPC in the constitutional hierarchy. The Party’s leadership role, affirmed in the 2018 constitutional amendment, is inconsistent with judicial authority to review Party-influenced legislation. The preference for legislative rather than judicial constitutional interpretation reflects the Leninist principle of unity of state power.
Scholarly debate continues about the desirability of judicial constitutional review. Some Chinese constitutional scholars argue for a constitutional review committee (宪法委员会, xiànfǎ wěiyuánhuì) within the NPC or a dedicated constitutional court. Others defend the existing system as appropriate for Chinese conditions, arguing that constitutional supervision should remain political rather than judicial. The Party’s 2014 resolution on comprehensively advancing rule of law called for improving constitutional supervision but did not endorse judicial review.
The Role of the Supreme People’s Court
While the Supreme People’s Court lacks constitutional review authority, it influences constitutional development through several mechanisms. The SPC’s judicial interpretations, though nominally interpretive of statutory law, sometimes address constitutional questions. The SPC may use constitutional principles to guide the interpretation of statutes and may cite the Constitution in reasoning. The SPC’s guiding cases may address constitutional issues, though they do so through the framework of statutory rather than constitutional interpretation.
The SPC also participates in the filing and review system. The SPC may request review of normative documents that affect judicial administration or litigant rights. The SPC also provides feedback on draft legislation and regulations through formal and informal channels. The SPC’s relationship with the Legislative Affairs Commission involves coordination on matters of legal interpretation and constitutional application.
Comparative Perspective
China’s constitutional supervision system differs markedly from both the American model of judicial review and the European model of centralized constitutional courts. The Chinese system more closely resembles the French model prior to the 2008 constitutional reform, in which constitutional review was exercised by a political body (the Constitutional Council) rather than a court. However, the Chinese system lacks the French system’s centralized petition mechanism and regularized review procedures.
The Chinese system also bears comparison with socialist constitutional traditions. The Soviet model placed constitutional supervision in the presidium of the Supreme Soviet, the legislative body, rather than in courts. The Chinese system departs from the Soviet model, however, in the development of the filing and review system and the citizen petition mechanism. These innovations represent Chinese adaptation of constitutional supervision to the conditions of a large, diverse country undergoing rapid legal development.
Recent Developments
The filing and review system has become more active and transparent under Xi Jinping. The Legislative Affairs Commission’s annual reports provide unprecedented detail about review activities, including specific cases and outcomes. The 2023 amendments to the Legislation Law strengthened the system by clarifying review procedures, requiring enacting bodies to report on corrective actions, and expanding the scope of reviewable documents.
The establishment of the National Supervision Commission has also affected constitutional supervision. The NSC’s authority to supervise all public officials creates an additional layer of constitutional accountability, though focused on official conduct rather than normative documents. The relationship between NSC supervision and legislative constitutional supervision through the NPC remains to be fully elaborated.