Abstract

The current constitutional review mechanism in China is so defective that it is incapable of solving the serious problem of recurring unconstitutional incidents.  Thus, it is essential to introduce a new institutional solution to improve the constitutional review mechanism.  Under the Chinese constitutional framework, the People’s Procuratorate is the most appropriate organ to initiate complaints of constitutional review.  The People’s Procuratorate shall, in accordance with the Chinese Legislation Law, initiate a timely pilot program under which the new constitutional review mechanism will be tested, then gradually establish and improve the procuratorial role in the new constitutional review mechanism.    


I. Introduction

In the process of pursuing a “rule of law” governance scheme in the People’s Republic of China (“PRC”), a problem to which more attention should be paid is the recurring occurrence of many unconstitutional incidents.  In the Chinese legal system, various normative legal documents contradict their superior counterparts – for example, administrative regulations contradict the legislations, judicial interpretations “amend” the laws that they set out to interpret, and ministerial administrative regulations often conflict with the Constitution and the laws.  Despite such problems, the Chinese constitutional review mechanism is extremely limited, and unfortunately, is rarely effective in mending them.  

Entering the new millennium, a handful of measures have been taken in an attempt to improve the constitutional review mechanism – the Legislation Law was enacted in 2000, the State Council promulgated the Regulation on the Procedures for the Formulation of Ministerial Rules and the Regulation on the Archivist Filing of Regulations and Government Rules in 2001, the Standing Committee of the National People’s Congress (“NPCSC”) established a sub-section under its Committee for Legislative Affairs in 2004, and the Law on the Supervision of Standing Committees of People’s Congresses at Various Levels was enacted in 2006.  Unfortunately, these measures have not improved the effectiveness of the current constitutional review mechanism, and therefore, it is essential to introduce a new institutional solution to promote better constitutional review.  

The author suggests that under the mainland Constitutional structure, the People’s Procuratorate is the most appropriate body to initiate a complaint for constitutional review.  In fact, the People’s Procuratorate is not only capable of partaking in the constitutional review process, but also bound to do so.