A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP

26 Pages Posted: 1 Dec 2008 Last revised: 2 Oct 2009

See all articles by Larry Catá Backer

Larry Catá Backer

Pennsylvania State University, Penn State Law

Date Written: November 28, 2008

Abstract

One of the great current debates in Chinese constitutional law is the role of constitutional review within the Chinese legal-political system. This paper looks at the recent work of Chinese constitutional scholars to analyze the thrust of that debate. It suggests that this modern scholarship rightly focuses on the institutionalization and bureaucratization of politics as a hallmark of the scientific development of rule of law notions within China’s political system. This bureaucratization and institutionalization has important ramifications for institutionalizing constitutional interpretation as a viable legitimating tool within this developing Chinese constitutionalism. However, the paper criticizes the current approaches because they tend to focus on state institutions, principally the National People’s Congress, as the place from where the constitutional interpretation function ought to be exercised - whether implemented in the form of a court or some other collective. The paper proposes a different focus. Reading modern Chinese constitutionalism holistically supports the idea that the constitutional interpretation function ought to be exercised from the highest level of political authority in China. The Chinese Constitutional framework provides an important insight, one that is worth emphasizing - under the Chinese Constitutional system, the CCP is and ought to be recognized as the authoritative institutional interpreter of the constitution and the constitutional order over which it presides and under which it is bound. The highest institutional body within the Chinese constitutional system is the Chinese Communist Party rather than the state institutions, like the NPC, that have been the object of the current debate. As the institutional embodiment of the highest political authority in the nation, the CCP may be best suited for the role of authoritative interpreter of the constitution. An institutionalization of that function in the form of a constitutional court or similar collective organization within the CCP may thus represent the most appropriate way of further legitimating constitutionalism within the Chinese legal order.

Keywords: china, constitutionalism, constitutional court, judicial review, communist party of china

JEL Classification: K40, P30

Suggested Citation

Backer, Larry Catá, A Constitutional Court for China within the Chinese Communist Party: Scientific Development and the Institutional Role of the CCP (November 28, 2008). Available at SSRN: https://ssrn.com/abstract=1308598 or http://dx.doi.org/10.2139/ssrn.1308598

Larry Catá Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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