Constitutional Review without Constitutionalism? The Prospects and Limitations of a Constitutional Review Mechanism in China

Abstract

In 2017, Chinese President Xi Jinping announced that China intends to “advance constitutionality review”, and a subsequent 2018 Constitutional Amendment established the National People’s Congress (NPC) Constitution and Law Committee for the purpose of conducting constitutionality review. Along with the official studies currently being carried out, scholarly proposals have also flourished. Together, they depict – though imprecisely – the institutional blueprint. However, far from promoting constitutionalist values, the system is merely instrumental in advancing the core interests of the party state. In addition, its inherent limitations also become apparent after revisiting constitutional review in pre-democratic Taiwan and when considered in light of the current “filing and review” system under the NPC. By developing a typology of constitutional cases, the present paper assesses the chances that the mechanism will function effectively in various case scenarios. It is concluded that constitutionality review is an encouraging, albeit severely limited, indicator of progress in the Chinese party state.