Lecture Russia and China :

Between Dictatorship and Democracy : Russia and China

Hybrid system in both Russia and China somewhere between dictatorship and democracy

Difference between theory and practice, there is often a big difference

There are element common with other system but their application are totally different

There is in the last few years a big debate if it is possible to talk about a illiberal constitutionalism, a
autocratic constitutionalism

Some believe they cannot work together constitutionalism =/= autocratic ways

Are there other pass from the Western perspective that can use the constitution even without the
same value

“Constitutionalism in context” project with the idea of analysing all the main aspect of
constitutionalism and what is a constitution by using for example unusual cases

The first chapter is about China which is quite surprising

There can be different ways of approaching the same subject

The chapter addresses this issue of talking about illiberal constitutionalism

This talk about new expressions appearing such as illiberal, democratorship, democrature has been
included in the Larousse

Those terms are contested because some consider that there cannot be mixes.

Bottini believe that they are useful concepts but they shouldn’t be used to legitimise those regimes

Watchout for the difference between descriptive and normative

Strategically using political institutions by political actors

Example with Russia and Poland

A. PRESIDENTIALIST CONSTITUTIONALISM IN RUSSIA

The president is the most important authority in the state and its position is abused to push the
regime to its extreme

Russia is supposed to be a semi-presidential regime

But it is definitely the presidency that characterised this constitutionalism

The constitution in place today came after the end of USSR

For this reason it is inspired by many other constitutions

The decision was made to choose a combination of parliamentary and presidential regime

Accountable government in front of the parliament

President elected by the people and thus particularly strong

They are not frequent but not limited to Russia

It is still a presidentialist system because the president has so many different concentrated powers

The general role of the Law in USSR was very influenced by Marx and Lenin

Law is considered as a superstructure, a product from the bourgeois state where the people rights are
opposed to the economical rights

They considered the first wave of rights to be only beneficial for the owners

They see constitutional doctrines as illegitimate because they see it as a product of the bourgeois

But they had different Constitutions

In reality those constitution were amended more than 400 times

In communist constitutionalism the most important part is that there are no counter power to the
people

The people being the main source of power the most important institution is the communist party

The decisions are made at the top and are applied at the bottom

The secretary of the party has a lot of power

The idea of the communist party is that at every level decision are made by a majority

Considered as a democratic system

The problem is that with a centralised decision system no opposition is tolerated

Thus decisions made at the top cannot be contested

This Constitutional model that has been present for a long time start to crumble in the 1980 and 1990
with the fall of USSR

Russia has a constitution in 1993, mention separation of power (horizontal and vertical), rule of law,
…
Power are organised to benefit the presidency

1. RUSSIAN PRESIDENTIAL REGIME

Directly elected which gives legitimacy

And a lot of power from the constitution

The beginning is similar to the French Constitution but after that it gives much more power and space
for the President

Article 80

1.The President of the Russian Federation shall be the head of the State.

2. The President of the Russian Federation shall be guarantor of the Constitution of the Russian
Federation, of the rights and freedoms of man and citizen. According to the rules fixed by the
Constitution of the Russian Federation, he shall adopt measures to protect the sovereignty of the
Russian Federation, its independence and state integrity, ensure coordinated functioning and
interaction of all the bodies of state power.

3. According to the Constitution of the Russian Federation and the federal laws the President of the
Russian Federation shall determine the guidelines of the internal and foreign policies of the State.

4. As the head of the State the President of the Russian Federation represent the Russian Federation
within the country and in international relations.

Article 81

1. The President of the Russian Federation shall be elected for six years by citizens of the Russian
Federation on the basis of universal, equal, direct suffrage by secret ballot.

2. Any citizen of the Russian Federation not younger than 35 years of age and with a permanent
residence record in the Russian Federation of not less than 10 years may be elected President of the
Russian Federation.

3. One and the same person may not be elected President of the Russian Federation for more than
two terms running. (amended in 2020)

4. The rules of electing the President of the Russian Federation shall determined by the federal law.

Article 83 The President of the Russian Federation shall:

• appoint by agreement with the State Duma the Chairman of the Government of the Russian
Federation;

• have the right to chair meetings of the Government of the Russian Federation;

• adopt decision on the registration of the Government of the Russian Federation;

• present to the State Duma a candidate for the appointment to the post of the Chairman of the
Central Bank of the Russian Federation, raise before the State Duma the issue of dismissing the
Chairman of the Central Bank of the Russian Federation;

• on the proposal by the Chairman of the Government of the Russian Federation appoint and
dismiss deputy chairmen of the Government of the Russian Federation and federal ministers;

• present to the Council of the Federation candidates for appointment as judges of the Constitution
Court of the Russian Federation, the Supreme Court of the Russian Federation, the Higher Court of
Arbitration of the Russian Federation, as well as a candidate for the post of the Procurator-General
of the Russian Federation; appoint judges of other federal courts;

• form and head the Security Council of the Russian Federation, the status of which is determined by
the federal law;

• approve the military doctrine of the Russian Federation;

• form the Administration of the President of the Russian Federation;

• appoint and dismiss plenipotentiary representatives of the President of the Russian Federation;

• appoint and dismiss the supreme command of the Armed Forces of the Russian Federation;

• after consultations with corresponding committees and commissions of the chambers of the
Federal Assembly appoint and recall diplomatic representatives of the Russian Federation in foreign
States and international organizations.

List of the president power, can dissolve the parliament, address the parliament every year, he has a
important role in choosing the other member of the government

The president also has a role in appointing the judges of the supreme court and other jurisdiction

The Russia Constitution has absorb a lot of constitution with a clear idea “how to find as many power
as possible in different constitutions to give the president as much as possible”
President legislative powers

Article 84 The President of the Russian Federation shall:

• announce elections to the State Duma according to the Constitution of the Russian Federation and
the federal law;

• dissolve the State Duma in cases and according to the rules fixed by the Constitution of the Russian
Federation;

• announce a referendum according to the rules fixed by the federal constitutional law;

• submit bills to the State Duma;

• sign and make public the federal laws;

• address the Federal Assembly with annual messages on the situation in the country, on the
guidelines of the internal and foreign policy of the State.

From a constitutional perspective Russia is a dualist parliamentarism

The head of the government “The Chairman of the government” is responsible in front of the
parliament and in front of the President

In Russia both the parliament and the president can force the government to resign and the president
is in charge of appointing the government

Article 111

The Chairman of the Government of the Russian Federation shall be appointed by the President of
the Russian Federation with the consent of the State Duma.

2.Nominations for the Chairman of the Government of the Russian Federation shall be submitted not
later than two weeks after a newly-elected President of the Russian Federation assumes office or
after the resignation of the Government of the Russian Federation or within one week after the State
Duma has rejected a nomination.

3.The State Duma shall consider the candidate nominated by the President of the Russian Federation
for the post of Chairman of the Government of the Russian Federation within one week after the
submission of the nomination.

4.In the event that the State Duma rejects the candidates for the post of Chairman of the
Government of the Russian Federation three times, the President of the Russian Federation shall
dissolve the State Duma and announce new elections.

Part 4 is a mean to pressure the Parliament

CONSTITUTION OF RUSSIA (DISMISSAL OF THE GOVERNMENT)

Article 117

1. The Government of the Russian Federation may offer its resignation and the President of the
Russian Federation shall either accept or reject it.

2.The President of the Russian Federation may decide on the resignation of the Government of the
Russian Federation.

3. The State Duma may express no confidence in the Government of the Russian Federation. A
resolution of no confidence in the Government shall be adopted by a majority of votes of the total
number of deputies of the State Duma. After the State Duma has expressed no confidence in the
Government of the Russian Federation, the President of the Russian Federation shall have the right
to announce the resignation of the Government or to reject the decision of the State Duma. In the
event that the State Duma expresses no confidence in the Government of the Russian Federation
again within three months, the President of the Russian Federation shall announce the resignation of
the Government or dissolve the State Duma. (…)

Another addition with paragraph 3 the President can say if he agrees or not with a vote of no
confidence, and dissolve the state Douma

Dissolving the parliament after a vote of no confidence happened in France under De Gaulle but it
wasn’t written in the Constitution where as in Russi it is  idea for Russia to give more powers to the
president

Legislative power

Bicameral

Council of Federation higher chamber here the members of the Federation are called subject of the
Federation

State Douma lower chamber

Article 95

1. The Federal Assembly consists of two chambers - the Council of the Federation and the State
Duma.

2. The Council of the Federation includes two representatives from each subject of the Russian
Federation: one from the legislative and one from the executive body of state authority.

3. The State Duma consists of 450 deputies. (elected for 5 years not written in constit)
Article 96

1.The State Duma shall be elected for a term of five years

2.The procedure for forming the Council of Federation and the procedure for electing deputies to the
State Duma shall be established by federal laws.

Election in 2016 saw a Putin majority and participation was very low 40% in 2016 and it used ot be
60% ten years before

Very much linked on the impression of the electors to not be able to influence the politics with their
vote

The electoral system is similar to the German one

The legislative procedure is also similar to the German

Douma having most power and Council only being able to veto

The Douma can override with a 2/3 vote the decision of the Council

Article 105

1. Federal laws shall be adopted by the State Duma.

2. Federal laws shall be adopted by a majority of votes of the total number of the deputies of the
State Duma, unless otherwise envisaged by the Constitution of the Russian Federation.

3. The federal laws adopted by the State Duma shall be submitted in five days for the consideration of
the Council of the Federation.

4. A federal law shall be considered to be approved by the Council of the Federation, if over a half of
the total number of the members of the chamber have voted for it or if the Council of the Federation
does not consider it in fourteen days. In case the Council of the Federation rejects a law, the
chambers may create a conciliatory commission for overcoming the contradictions that arose, after
which the federal law shall be recognized by the State Duma.

5. In case the State Duma disagrees with the decision of the Council of the Federation, a federal law
shall be considered adopted, if during the second vote not less than two thirds of the total number of
the deputies of the State Duma supported it.

The State Douma adopts the law and propose them but show then to the Council

ii. HOW TO MAINTAIN POWER IN THE PRESIDENCY

This is a problem on how to avoid too much concentration of power in one person
Tonny Blair François Mitterrand

In many constitutions as we know they would limit the number of terms

At the same time this idea is in tension with the idea of democracy, it would undemocratic to limit
the number of terms if the electors want to elect the same person over and over again

Thomas Hobbes (1588- 1679)

Constractualism, thought that men are driven by a perpetual desire to remain in power

“Men are driven by a perpetual and restless desire of power after power, that ceasethonly in death.”

EXAMPLES OF PROLONGED PRESIDENTIAL TERMS

• Zine el-Abidine Ben Ali (1936-) : 24 years in power in Tunisia – 1987-2011

• Abdelaziz Bouteflika (1937-) : 20 years in power in Algeria – 1999-2019

• Hugo Chavez (1954-2013) : 14 years in power in Venezuela – 1999-2013

• Omar Bongo (1935-2009): 42 years in power in Gabon – 1967-2009 => Constitutional amendments
in order to avoid limitation of consecutive term

Those limitations work or not

In Russia it did kinda of worked

• 2000-2008 President of Russia

• 2008-2012 Chairman of the Government

• 2012-2024 President of Russia

• 2024-2036 President of Russia?

Because of the limitation of the two term Putin made sure that the new president would be someone
he trust

He became prime minister for a term

That allowed for a maintenance of power in very similar hands

In the mean time a constitutional amendment was done in order to change presidential term from 4
years to 6 years after Medvedev term
During both his term as president and prime minister

There were many protest against results of election especially 2011 when Putain prepared to
campaign for presidency

At the time the question was if Putin would leave power or reinforced authoritarianism of the state

Lead to censure in the country especially for the press

Alexeï Navalny was prohibited to use the internet

The opposition is very fragmented

The only attempts are at a local level

Abandonment of the opposition due to repression

Navalny was poisoned most likely

Article 81 (initial version)

3.[o]ne and the same person’ cannot hold the president’s office ‘for more than two consecutive
terms’.

NewArticle 81

(3): ‘The provision of Section 3 of Article 81 of the Constitution of the Russian Federation, limiting
the number of terms during which the same person is able to hold the office of the President of the
Russian Federation, applies to a person who holds and (or) held the office of the President of the
Russian Federation, without taking into account the number of terms,during which [sic] it held and
(or) holds this post for the time the amendment to the Constitution of the Russian Federation enters
into force, introducing a corresponding restriction, and does not exclude the possibility for [sic] it to
hold the office of the President of the Russian Federation for the terms allowed by the hereby
provision.

Problem of clarity, basically no one understood for a time, it meant that it reset Putin terms counter
to 0

The idea wasn’t to simply eliminate the limit of turn but to at least make sure that Putin had 2 more
turns

This will give 12 more years starting 2024

The president got new power like appointing judges or members of parliament for life

Power of appointing regional procecutor

From the amendment of 2020

• New Article 67: The Russian Federation, united by a thousand-year history, preserving the memory
of the ancestors who transmitted to us the ideals and faith in God, as well as the continuity in the
development of the Russian state, recognises the historically established state unity.
• New Article 79: The Russian Federation may participate in interstate associations and transfer to
them part of its powers according to international treaties and agreements, if this does not involve
the limitation of the rights and freedoms of man and citizen and does not contradict the principles of
the constitutional system of the Russian Federation

New values: Importance of believing in god, restoring truth about WWII, successor of USSR

2. THE CONTROL OVER COUNTER-POWERS

i. FEDERALISM UNDER SURVEILLANCE

Vertical separation of power

It doesn’t work very well because it very well under the surveillance of the president

Federalism is part of the structure of the Russian state

Subjects not members

3. The federal structure of the Russian Federation is based on its state integrity, the unity of the
system of state authority, the division of subjects of authority and powers between the
bodies of state power of the Russian Federation and bodies of state power of the subjects of
the Russian Federation, the equality and self determination of peoples in the Russian
Federation

Federalism or state unitary authority?

On paper it is federalism, competence by principle for the subject

On paper similar to the US and other countries

The competences of the federation are large compare to other countries

Important the Federation decides of the regional budget

This allow the Federal State to intervene heavily with the central state
Lot of joint competences = decision of the centre applied to local government

This relation of influence from centre to region

This is also explained by the fact that the president can suspend acts from local bodies if he considers
them to be unconstitutional

The President acts as a judge of constitutionality for local government

Article 85

2. The President of the Russian Federation shall have the right to suspend acts of the Bodies of
executive power of the subjects of the Russian Federation in case these acts contradict the
Constitution of the Russian Federation and the federal laws, international commitments of the
Russian Federation or violate the rights and freedoms of man and citizen until the issue is solved by a
corresponding court

The president is at the top of the hierarchy both local and central

This gives more power to the central state

Article 77 explains more this idea of unity

Well know theory and doctrine in Russia that is found in the Russian constitutuion All the authority at
different level are united under the president

Two constitutional court in Russia

The first one was quickly eliminated due to disagreement with the executive

Strangely the second court is more carefull when it comes to dealing with disagreement with the
executive

It isn’t only the possibility in Russia it can happens else where if they are too activist

Courts are not elected and are thus in danger of either being eliminated or losing much of their
power with constitutional amendments

In Russia there cannot be a constitutional review of the people decision

So creating a constitutional court was a break in this tradition

The new executive wanted to seize all of the property of the communist party and its members

But the newly formed constitutional court ruled that that was unconstitutional
The suspension of any operation of the communist party was an object of constitutional review by
the court which ruled that in a democratic state there should be no ban of a political idea

October 5th 1993

Three days later the president disbanded the court

The current constitutional court fits the ideal of a constitutional court

Open court including to opposition groups in parliament

In theory the court can verify the balance of power between federal and local level

It can also declare a law unconstitutional

Russian constitutional court inspired by Germany

The court has been careful to follow the president agenda: exemple validation of the invasion of
Ukraine

Many courts and local authorities do not respect the rulling of the Constitutional Court

VALERY ZORKIN (1943-) President of the first (1991-1993) and second (2003-today) Constitutional
Court of Russia

For some scholar it is the sign that he accepted the dominance of the president powers

Zorkin isn’t appreciated by other judges from other courts because he accuse them of being
corrupted but this means that they do not implement the supreme court decisions

The constitutional court decided to award retribution to the victims of the communist party and
their family

But it wasn’t implemented until 10 years later when Putin decided to do so

THE PROKURATURA

Organ of control

Administrative institution that remain from the tsar period and remained through the communist
regime and is still here today

It is In charge of controlled of the judiciary system

Citizen can ask the prokuratura to review rules made by tribunal

It can also do constitutional review

The Prokuratura is well respected and its decisions are respected in contrary to Constitutional Court

The Procurator general head of the institution is proposed by the president to the federal council

One of the roles of the president is to decide of a referendum

Example of September 2022 in Ukrainian regions Putin decided of a referendum

Shows of a strategic used of the constitution articles

It is difficult to implement a constitution if the political institution do not comply about it

Example of the constitutional court in Russia

Separation of power is hard to understand by only reading the constitution, need to see how it is
used

Essentially in Russia today all the institutions respond to the president

B. IN SEARCH OF OPENINGS IN CHINESE CLOSED CONSTITUTIONALISM

This constitution is closed to minority, oppositions but there might be some openings

There is a constitution in China but there isn’t a distribution of power

The chineses constitutionalism is different from the one we know

This constitutionalism is mainly based on the rejection of western constitution

Rejection of liberalism mainly

Constitutional tradition can be found in the war against Japan from 1844 to 1925

The Deafeat of China against Japan was attributed from the importation of the western ideas to Japan

This idea was defused in the Chinese elites, they thus wanted to see those imports from western
constitutionalism

But the constitution in 1912 inspired by Japan was a failure and new principle appears in 1920 Sun
Yat-Sen who was the first leader of China and the Kuomintang

His political philosophy is based on 3 principles of the people:

• Subsistence ensured by the state (Socialism)

• Sovereignty comes from the direct participation of the people

• Nationalism as the independence from foreign imperialist domination (NB: this version of
Nationalism is different from the Western political ideology with the same name)

To make those three principles real 5 powers are needed

Three traditional ones + The examination power, power related to election + Power of the people to
elect certain representatives for specify offices

The implementation of those principles couldn’t occur during Yat-Sen time but Tchang Kaï Chek did

Leader of the Republic of China (ROC) from 1928 to 1975, first in mainland China and then inTaiwan
after 1949

After the retreat to Taiwan He imposed martial law and prosecuted critics

MAO TSÉ-TOUNG (1893-1976)

• Chairman of the Communist Party of China from 1949 to 1976

• Founding father of the People's Republic of China (PRC), established on October 1, 1949 after the
defeat of the Nationalist Government (ROC), withdrew to Taiwan.

It is inspired by USSR

Founded on the idea of a unique party with paternalism from Confucianism

The political power has an educational function that contribute to justify a authoritarian and
totalitarian power

What is important is that there is a central power taking charge of the population

The law isn’t an important at first of the ideology

New Constitution

First a provisional then a permanent one but they aren’t at the center of the system

DENG XIAOPING (1904-1997) ”The Architect of Modern China

1976 Mao died and China is isolated from the rest of the world

Xiao Ping opened the country to the world, the policy “of reform and opening”
The idea is that still society has to be lead by a unique party but the cult of the leader has to be
reduced

1982 It is the current constitution that is written at that time but it has been largely amended since

It ask the question of how to govern Chian, a big country with a huge population, independent
movement, difference between the populations ..

Table of Content of the constitution is like usual constitutions

But what stands out is the preamble

THE PREAMBLE OF THE CONSTITUTION OF PRC OF 1982 (CONSOLIDATED VERSION AFTER THE
AMENDMENTS OF 2018)

A specific ideology is put forward in it

Socialist economy, communist party and its traditional ideas, people dictatorship

The rest of the constitution is how to apply those principles

The basic task of the nation is to concentrate its effort on socialist modernization along the road of
Chinese-style socialism. Under the leadership of the Communist Party of China and the guidance of
Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of
Three Represents,the Chinese people of all nationalities will continue to adhere to the people’s
democratic dictatorship and the socialist road, persevere in reform and opening to the outside
world, steadily improve socialist institutions, develop the socialist market economy, develop
socialist democracy, improve the socialist legal system and work hard and self-reliantly to
modernize the country’s industry, agriculture, national defence and science and technology step by
step and promote the coordinated development of the material, political and spiritual civilizations,
to turn China into a socialist country that is prosperous, powerful, democratic and culturally
advanced.

In theory there are principles and there a certain distribution of power

In practice there is a fusion between three elements, the party, the state and the army

2019 celebration of the RPC

This constitution is based on the fusion of the party, state military

The secretary of the party is the head of China and the head of the military commission
THE CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA BASIC PRINCIPLES (AMENDED IN 2018)

Article 1

• The People’s Republic of China is a socialist State under the people’s democratic dictatorship led by
the working class and based on the alliance of workers and peasants.

• The socialist system is the basic system of the People’s Republic of China. The defining feature of
socialism with Chinese characteristics is the leadership of the Communist Party of China (added in
2018). Disruption of the socialist system by any organization or individual is prohibited.

Article 2

• All power in the People’s Republic of China belongs to the people.

• The National People’s Congress and the local people’s congresses at various levels are the organs
through which the people exercise state power. (…) Article 3 The State organs of the People’s Republic
of China apply the principle of democratic centralism. • The National People’s Congress and the local
people’s congresses at various levels are constituted through democratic elections. They are
responsible to the people and subject to their supervision. • All administrative, judicial and
procuratorial organs of the State are created by the people’s congresses to which they are
responsible and by which they are supervised. • The division of functions and powers between the
central and local State organs is guided by the principle of giving full scope to the initiative and
enthusiasm of the local authorities under the unified leadership of the central authorities.

In Chinese institution there is always a double

One for the party and one for the state

This shows how much the two are linked toward one another

The communist party isn’t a united block

It is divided between generations of leaders that have some disagreements

Inside the party there can be internal oppositions

Those who are in favour of a closing economy other for opening

What is the most important knowledge …

THE IMPORTANCE OF THE CHINESE COMMUNIST PARTY (JIANG SHIGONG, 2010)

“(…) Thus, much like the "king's two bodies" in medieval European politics (Kantorowicz, 1957),
"people's sovereignty" in China has its own two bodies, the CCP and the NPC. The former embodies
the fundamental law that acts as the absolute constitution; the latter embodies the fundamental law
codified in the written constitution.

=>Dual constitution:the written Constitution and the CCP’s Charter

Because everything is doubled for this author there is a dual constitution, the constitution that we
are studying and the Party Charter

So what is the relationship between the two

(…) By the letter of the written constitution, the NPC and its Standing Committee can fully exercise
their power independently of the CCP, but in actual political practice they cannot develop a political
will with regard to national goals and the political mission without the party”.

=> ”The CCP leadership is the most essential characteristic of Socialism with Chinese Characteristics”
(preamble of the Constitution,2018 amendment)

It is impossible to just read the constitution to understand how things work

XI JINPING (1953-)

• Secretary general of the Communist Party in 2012

• President of the People’s Republic of China (PRC) since 2013

• Policy of maximizing the leadership of the Party

Power became more centralised and the constitution more closed

He started with an internal policy against corruption that made it easy to eliminate opposition inside
the party

Also allowed to have a very offensive policy against the rest of the world

Started the will to be a model for Asia against western ideas

THE LEGISLATIVE POWER: THE NATIONAL PEOPLE’S CONGRESS

The emanation of the people and thus the most important in theory

Composed than more than 3000 people that delegate their power to a smaller number, the standing
committee

This committee has a chairperson, vice chairperson, secretary …

They are elected by the congress s

Separation of function that non of the members of the standing committee can held other functions

What’s interesting and typical of Chinese constitutionalism is that the legislative power also has the
prerogative of constitutional review  there cannot be any organ above the will of the people

The Congress can oversee the implementation of the Constitution (that is usually the power of the
judicial)

Election of the Supreme People Court president

Extensive clause of the Congress power : (16) to exercise such other functions and powers that should
be exercised by the highest organ of State power.

Define the Congress as the highest organ

No judicial independence from the Congress

The national people congress has the power to remove certain people from office All other organs of
state can be removed by the Congress

Supreme legislative power –> clear rejection of separation of power

The executive power is held by the president and vice president

The Term of the president was limited to 2 terms but was lifted in 2018

All of the powers of the president come from the support of the Congress

The president and vice president are assisted by a government the Council of State affairs

The president has a military power

The military commission exist both in the state and in the party

There is a disagreement with the relation with the military and the party and some want a
constitutional reform to separate the military commission of the State from the party

Repealed term limit for president and vice president and added environment protection in the
congress prerogative
The constitution became normative this is a contradiction with many other aspect inside the
constitution

This can be an opening toward a constitution that could be the supreme law/norm

But at the same time on the contrary to other constitution the Chinese isn’t justiciable

2. THE IMPOSSIBILITY OF AN EFFICIENT CONSTITUTIONAL REVIEW

There isn’t any mention of the constitution being immediately applicable and normative like Brazil
Germany or Spain

HUMAN RIGHTS (ADDED IN 2004)

Equality before the law, right to property, principle of the rule of law,

New constitutional amendments

The constitutional is still not justiciable

In 1964 the Supreme court refused to use the constitution to rule

3. POSSIBLE OPENINGS OF CHINESE CONSTITUTIONALISM: THE QI YULING CASE OF 2001

Case regarding the right to education

A young women Qi Yuling took a exam to pursue further education

But her letter of acceptance was intercepted by another women who took her identity and continued
to use her identity to work for a bank

A long the way many institutions knew the fraud and were accomplice

The original Qi Yuling took the fraud and went to the constitutional court

She said that she was deprived of her name and write to education

That right of education wasn’t written anywhere apart from the constitution

When she was in a court of appeal this court asked the supreme court what to do based on the basis
of right to education

The Supreme people court answered yes quoting the constitution

This was GROUND BREAKING it was a convention that constitution cannot be used by court but now
it can, for some not enough because it was used against another individual

But it opened the possibility to use it in court

In 2008 the case for formally retired, it was forbidden for the judges to use the constitution again
Why did the supreme court reverse itself ?

Supreme Court President was involved with corruption scandal in 2008

HUANG SONGYOU (1957-)

• Vice-President of the Supreme People’s Court (2002-2008)

• Sentenced to life in prison in 2010 for corruption

Administrative justice instead of judicial justice

Hope for judicial Review

Art. 90(2) Law on Legislation

Where any state organ and social group, enterprise or non-enterprise institution or citizen other than
the bodies enumerated above, deems that an administrative regulation, local decree, autonomous
decree or special decree contravenes the Constitution or a national law, it may make a written
proposal to the Standing Committee of National People's Congress for review, and the office of
operation of the Standing Committee shall study such proposal, and where necessary, it shall
distribute such proposal to the relevant special committees for review and comments

There is an encouragement from the central state in favour of administrative justice because it allows
the citizens to defend their rights and the government to ensure that their policies are applicated

Created a certain opening

THE SUN ZHIGANG CASE (2003)

Was suspected to be a foreign worker and not Chinese and was beaten and held in a administrative
retention centre, because he was held there it was a violation of the constitution which said that only
the law could make something criminal

There was a argument that his arrest violated the Habeas Corpus in Chinese constitution

Chinese scholars sended complains to the Congress which immediately reacted and the law was
changed in order to separate administrative detention from criminal arrest

A special office from the Standing Committee was created to deal with complaints about the
unconstitutionality of administrative decisions

Quickly this case was prohibited as a quote

Return on this potential opening

Still it gave leverage for political activist and hopes

KEY POINTS OF THE LECTURE

• Constitutionalism on paper vs constitutionalism in practice

• Communist Constitutionalism

• Russian centralized Presidentialism

• Centralized federalism in Russia

• Chinese five powers constitutionalism in the ROC

• Centralization of power in the PRC

• The disempowerment of constitutional courts

• Possible judicial openings in the Chinese closed constitutional system