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An Assessment of Socialist Constitutional Supervision Models and Prospects for a Constitutional Supervision Committee in China: The Constitution as Commander?

Forthcoming in CHINA’S SOCIALIST RULE OF LAW REFORMS UNDER XI JINPING, John Garrick and Yan Chang Bennett, eds., Routledge 2016

UC Hastings Research Paper No. 150

29 Pages Posted: 2 Jul 2015 Last revised: 18 Sep 2015

Keith J. Hand

University of California Hastings College of the Law

Date Written: June 29, 2015

Abstract

The October 2014 decision issued by the Fourth Plenum of the 18th Central Committee of the Communist Party of China calls for the perfection of constitutional interpretation and supervision systems. The Fourth Plenum Decision and recent leadership statements have generated speculation that Chinese leaders may consider concrete institutional reforms to strengthen constitutional supervision. They are unlikely to turn to the courts. One alternative to judicial review is supervision by a constitutional supervision committee within the National People’s Congress structure. A range of models for constitutional committees that uphold the unity of state power in supreme people’s legislatures and one-party rule emerged in socialist legal systems. This experience could be applied in China. Arguably, a constitutional supervision committee would strengthen the Party’s narrative that it is building a socialist rule of law state and promote some current governance goals. However, the obstacles to such a committee in China, including leadership precedents, lessons derived from earlier stages of political-legal reform and the collapse of other communist regimes, problems of political sensitivity and capacity, and the importance of flexibility and adaptation in the Party’s governance posture, are significant. For a conservative Party leadership that places a premium on flexibility to maintain its leadership status and to address political-legal tensions in a rapidly changing system, the perceived risks of establishing a constitutional supervision committee are likely to outweigh the perceived benefits.

Keywords: China, constitutional review, constitutional supervision, socialist law, filing and review, constitutional reform, Fourth Plenum

Suggested Citation

Hand, Keith J., An Assessment of Socialist Constitutional Supervision Models and Prospects for a Constitutional Supervision Committee in China: The Constitution as Commander? (June 29, 2015). Forthcoming in CHINA’S SOCIALIST RULE OF LAW REFORMS UNDER XI JINPING, John Garrick and Yan Chang Bennett, eds., Routledge 2016; UC Hastings Research Paper No. 150. Available at SSRN: https://ssrn.com/abstract=2624663

Keith J. Hand (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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