Zhang Xiang: The introduction of new regulations on filing and review may increase the rigidity of Chinese-style constitutional review

China Youth Daily, China Youth Network reporter first Rongjie

After the promulgation of the "Decision of the Standing Committee of the National People's Congress on Improving and Strengthening the Filing and Examination System" (hereinafter referred to as the "Decision"), the filing and examination system for supervising the implementation of the Constitution and laws, especially the constitutional review, will grow "teeth"; the filing and examination system has been in operation on the mainland for more than 40 years. A reporter from China Youth Network had a conversation with Zhang Xiang, a member of the Filing Review Expert Committee of the Legislative Affairs Committee of the Standing Committee of the National People's Congress and a professor at Peking University Law School.

Zhang Xiang, member of the Filing Review Expert Committee of the Legislative Affairs Committee of the Standing Committee of the National People's Congress and professor of Peking University Law School. Photo courtesy of the interviewee.

China Youth Daily: In your opinion, what is the significance of the issuance of the "Decision"?

Zhang Xiang: On December 16, 2019, the 44th meeting of the Standing Committee of the 13th National People's Congress (NPC) passed the Measures for the Filing and Review of Laws and Regulations and Judicial Interpretations (hereinafter referred to as the "Measures"), which provides a unified working system and norms for the filing and review work, but the Measures are only internal regulations of the NPC. The Standing Committee of the National People's Congress (NPC) has elevated the Measures, an important document with internal effect, to a legislative decision with legal effect, providing a higher level and clearer legal basis for the filing and review work.

In recent years, the filing and review system has been very active in the field of constitutional implementation in the mainland, and there are many institutional innovations and specific review cases, which have had an important impact on the comprehensive promotion of the construction of the rule of law, and the legal scholars generally look forward to the issuance of the Decision.

The "Decision" summarizes the advanced experience of filing and review work since the new era, strengthens the rigidity of filing and review, lays the foundation for the further development of the filing and review system in the future, and establishes the basic institutional framework, which will have an important impact on the improvement of the implementation of the Constitution.

China Youth Daily: Among the many cases announced in the 2023 filing and review work report, there are cases where restrictions on the rights of relatives of persons involved in crimes have been stopped. The Legislative Affairs Committee of the Standing Committee of the National People's Congress pointed out that this kind of provision seriously violates the basic principle of the modern rule of law of "self-responsibility and impunity", and this attitude has been widely praised by the public.

Zhang Xiang: Everyone's personality is independent and should only be responsible for their own actions. As long as the law is not violated, there should be no punishment of any kind, which is the most basic spirit of the modern rule of law. Punishment should be directed only at the offender and should not extend to relatives who are not directly involved in the crime.

The restriction on the rights of the relatives of those involved in crimes, that is, the so-called "Zhulian" and "Liansit", reflects the outdated concepts left over from the era of feudal autocracy. With the progress and development of society, the correction of these backward systems is worthy of affirmation. "Connections" and "connections" can pose a threat to every innocent person. Against the backdrop of the expansion of the "criminal circle" and the widespread application of "drunk driving", "aiding and abetting trust", and "picking quarrels and provoking troubles", if "sitting" and "sitting" are allowed to run rampant, everyone may suffer unjustified disasters, and "when people sit at home, disaster will come from heaven", and everyone's freedom may be threatened.

China Youth Daily: After the Legislative Affairs Committee of the Standing Committee of the National People's Congress (NPC) announced that it had suspended local regulations on cases of close relatives of persons involved in crimes, the regulations in some places that "children of criminals are not allowed to take public examinations" have once again attracted public attention. The Civil Service Law, the Military Service Law, the Judges Law, the Procurators Law, etc., all only stipulate that those who have been punished by criminal punishment are not allowed to apply for civil servants, join the army, or hold specific positions, and do not stipulate that the family members of criminals shall not be hired as civil servants.

Zhang Xiang: In some places, the practice of "connecting people" and "sitting together" has already been corrected in the filing review, so if there are still similar regulations in other places, they should also consciously take the initiative to correct them. The Legislative Affairs Committee of the Standing Committee of the National People's Congress made it clear that it will continue to follow up and study the normative documents of the nature of "joint sitting", and launch special reviews and centralized clean-up as needed. Relevant competent departments should deploy and carry out self-examination and self-correction nationwide to prevent and avoid similar situations.

The "Decision" points out that after the regulations and judicial interpretations are corrected or revoked, if other normative documents have the same problems, the formulating organ shall revise or repeal them in a timely manner. The correction of the "joint sitting" should be universally binding, ensuring that law enforcement and justice are advanced on the track of the rule of law.

China Youth Daily: In the previous filing and review work of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, a number of cases that contradicted the provisions of the Constitution have been identified and corrected, such as "dismissal after birth", "compulsory paternity test", "vehicle bundling annual inspection", and "illegal lifetime ban on specific industries". Some scholars believe that the mainland constitutionality review work in its infancy stage is only a "small step", the scope of coverage is not widespread, the conditions for initiation are relatively random, and the sustained effect that can be produced by individual corrections remains to be seen.

Zhang Xiang: The cases you mentioned have attracted widespread public attention. In 2019, the Fourth Plenary Session of the 19th Central Committee of the Communist Party of China (CPC) decided to put forward "constitutional interpretation", "constitutional review" and "record review" as important mechanisms for the implementation of the Constitution for the first time. The mainland's constitutional review mechanism is broadly divided into two levels: "front-end" and "back-end". The "front-end" refers to the pre-constitutional control of the draft law in the legislative process, while the "back-end" constitutional review is more reflected in the filing review. As a "back-end" mechanism, filing review is an important focus of Chinese-style constitutional review.

In the future, constitutional review may involve more provisions that impose restrictions on citizens' human rights and freedoms, and more cases will be included in the scope of filing review. Previously, after the filing and review of the Legislative Affairs Committee of the Standing Committee of the National People's Congress, the restrictions on the household registration of taxi drivers and the inspection of mobile phone call records by the traffic police were corrected, which reflects the important role of the Constitution in protecting the human rights and freedoms of citizens. As the protection of human rights in the Constitution becomes increasingly prominent, the public's understanding of relevant issues will also be strengthened, and the Decision guides the public to more actively put forward suggestions on the constitutional review of various normative documents, which plays an important role in promoting the constitutional review.

How to improve the quality of constitutional review and give more effective play to the role of constitutional review in the implementation and supervision of the Constitution is of great importance. The key to improving the quality of constitutional review is to strengthen the disclosure of filing review opinions, and some cases may seem simple, but in fact involve profound and complex legal issues. In the process of filing review and internal research, the Legislative Affairs Committee of the Standing Committee of the National People's Congress has conducted careful and meticulous research, and the public may be confused and misgiving. If the process of examination opinions and argumentation is made public, it will be easier for the public to understand and accept.

China Youth Daily: The Legislation Law stipulates that the Standing Committee of the National People's Congress has the power to revoke administrative regulations and local regulations that contravene the Constitution and laws. However, up to now, the Standing Committee of the National People's Congress has not exercised the right of revocation, and there has not been a single case of revocation.

Zhang Xiang: Whether there will be a "first case of revocation" can not be used as a criterion to evaluate whether the filing review is successfully promoted, as long as the filing review can effectively correct the error, it means that the filing review has played a role, if after preliminary communication, the review opinions failed to produce results, and finally made a decision to revoke, which means that the record review has encountered resistance. So far, the problems have basically been resolved after communication or filing examination opinions.

The Decision is legally binding, which enhances the rigidity of filing and review. The "Decision" stipulates that if the formulating organ does not agree to amend or repeal it after communication, or fails to submit a clear written handling plan and time limit, the working body of the special committee and the Standing Committee of the National People's Congress shall submit a written review opinion to the formulating organ in accordance with the law, and request the formulating organ to submit a written handling opinion within two months. Where the drafting organ amends or repeals regulations or judicial interpretations in accordance with the opinions submitted, the review is to be terminated.

In my opinion, the workflow of the future filing review mainly includes several steps: communication, submission of examination opinions, and making a generally binding review decision. If the decision can be fully implemented, the rigidity of the filing review will be greatly strengthened.

Source: China Youth Daily client