History Of Constitutionalism In China

Submitted By samantha_d
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Constitutional Enforcement
Constitutionalism refers to the notion that a governments power not only derives from but is consequently limited by a fundamental higher power, being the constitution (Ashley Sun, 2014)
Unlike many countries there is not given organizational authority that is bestowed with the responsibility of enforcing the constitution within China, although the constitution itself stipulates that the National People’s Congress, being a unicameral legislative house and the highest state body in the People’s Republic of China and its Standing Committee have the power to review any violations of the constitution whether they be laws or activities of the nation Section II of the constitution set out the Chinese Bill of Rights and it is subsequently entrenched in the constitution. The Bill of Rights although has not been regularly and consistently enforced and therefore it is somewhat ineffective in protecting the rights of its nation (Joseph Elliss, 2002)
At one point the People’s Republic of China had an Open Constitution Initiative which was an organization run by lawyers and academics that advocated the rule of law and greater constitutional protections although this was shut down by the government on June 8, 2004 without precise reason being given although the crackdown came at a time of heightened political tensions. In 2009 despite being shut down the group published a report criticising China on its ‘failed’ policy making in regards to Tibet. As a result of this the group was sanctioned with a heavy $1.4 million and authorities declared the organisation “illegal” and it was once again shut down.
The constitution of the People’s Republic of China somewhat demotes personal rights and liberties to a higher power being the state and in this sense it not only gives for the constitution providing a “communal” vibe but also one that is slightly “despotic” (Jospeh Ellis, 2002)
Under the legal system of the People’s Republic of China, courts don’t have the l power of judicial review and ultimately are unable to invalidate a statute on the ground that it violates the constitution. Despite this, since 2002 there has been a special committee of the Standing Committee of the National People’s Congress which has reviewed laws and regulations for constitutionality. Although this committee has not yet explicably ruled that a law or regulation is unconstitutional, in one case, after the subsequent media outcry over the death of Sun Zhigang, the State Council was forced to rescind regulations allowing police to detain persons without residency permits after the Standing Committee of the National People’s Congress made it clear that it would rule such regulations unconstitutional (Greg Walter, 2001)
In a deleted passage by Xi Jinping, the General Secretary for the Communist Party of China, he states “: “Realizing constitutionalism, safeguarding civil rights … limiting power and separating the powers, only through this can citizens voice criticism of public power, can everyone lead a free life according to their inner beliefs, and can we build a free and strong country. Only after realizing the greater dream of constitutionalism can everyone have a beautiful individual dream.”

Constitutional Interpretation
The Standing Committee of the People’s Republic of China has the ability to interpret the Constitution as do top legislatures although they do not have a high court responsible for resolving issues of constitutional dispute, rather any interpretations are made by the Constitutional Court in the Judicial Yuan being the highest judicial power of the People’s Republic of China
Constitutional interpretation is when a judge is tasked with the responsibility of distinguishing the true meaning of the words in