Dual Dynamics of Chinese Constitutional Review: Coexistence and Tension Between Rule of Law and Party’s Leadership
摘要
The advancement of constitutional review in 2018 marks a significant constitutional development in China under Xi Jinping. This article examines cases since then and reveals the dual dynamics of Chinese constitutional review: promoting the rule of law and upholding the leadership of the Chinese Communist Party (CCP). On one hand, constitutional review has emerged as an additional channel for protecting human rights, enhancing legislative consistency and improving government accountability. On the other hand, it is deeply politically embedded, as reflected in the determination of priority according to the CCP’s policies, the examination of legislation according to the CCP’s directives, and the enshrinement of Xi’s thoughts and Party’s leadership as fundamental principles of constitutional review. When tensions arise between the CCP’s policies and the constitution or laws, the former often prevails. This article suggests that these dual dynamics of Chinese constitutional review are best understood through the lens of Chinese rule of law, which features a duality: upholding the rule by the Party while safeguarding the authority and autonomy of law. It argues that neither dynamic should be overlooked or overstated. Views that reduce constitutional review to be a mere tool of the CCP’s rule neglect the autonomy of various actors in this process and undermine the rationality and value of constitutional review in regulating modern China. Yet, an independent constitutional review, as entrenched in the Western conception of the rule of law, is unlikely to take root in China owing to the imperative to uphold the CCP’s leadership.