The China Law Center Holds Conference in China on Constitutional Review
The concept of constitutional review has been established in the United States since the 1803 Supreme Court case Marbury v. Madison. In China right now the issue is so controversial that the word for "constitutionalism" is not supposed to be printed in newspapers.
Nonetheless, reform-minded scholars, lawyers, and activists in China have begun to make constitutional arguments in lawsuits, articles, and petitions, despite the lack of any government institution to enforce the Chinese constitution. And the Chinese government has recently recognized the constitution in several ways, including by creating a commission with some power to review local laws for constitutional compliance. "There are these small developments bubbling up in China," says Paul Gewirtz, Potter Stewart Professor of Constitutional Law and director of the China Law Center. "The situation seems to be potentially in flux." The China Law Center held a conference in Beijing on May 7-8, in conjunction with Peking University Law School, to bring together leading Chinese legal scholars and government officials to discuss "Constitutional Review and the Future of Chinese Constitutionalism."
"The discussions were completely fascinating and remarkably open," Gewirtz says, "focusing not only on what sort of constitutional review would be ideal for China, but what mechanisms might practically be implemented in the next few years."
Jeffrey Prescott, a China Law Center fellow based in Beijing, describes why such discussions are inherently sensitive in China: "Constitutional reform raises fundamental questions in China about the role of the government and of the Party.... In recent years there have been few public opportunities in China to discuss these issues, so I think participants on the Chinese side found the workshop valuable to push forward debate about constitutional reform."
Five other non-Chinese participants traveled to China with Gewirtz. They were Drew Days, Alfred M. Rankin Professor of Law at YLS; Paul Kahn, Robert W. Winner Professor of Law and the Humanities at YLS; Stephen Holmes, a law professor at NYU; Dieter Grimm, a former justice of the Federal Constitutional Court of Germany; and Olivier Dutheillet, a member of the Constitutional Council of France. Gewirtz says it was particularly helpful that the participants represented three different models of constitutional review, rather than just the American system. The German system has a specialized constitutional court, with fixed terms for judges. In France, constitutional review is triggered by the political system, and the review is more closely tied to the political process. The merits and disadvantages of each approach came up during the conference.
The experts from outside China provided advice and insights, but aimed primarily to help the Chinese develop their own ideas and approaches. Gewirtz was pleased that all of the non-Chinese participants had extensive practical experience with how constitutional review works in their countries, since the Chinese have no direct experience with it.
The discussion at the conference covered theory, pragmatism, and advocacy. For example, the National People's Congress officially has the power to interpret the constitution, and the conferees talked about whether to advocate for a committee under the NPC to take up constitutional review or whether to push for judicial review instead. Some saw the committee approach as more practical, while others felt it could never be independent enough. They also discussed what sorts of arguments in favor of constitutional review could be persuasive to China's leaders.
Gewirtz emphasizes that constitutional review is more than a topic for scholars to debate, since it is a key mechanism for advancing individual rights, such as the right to property and the right to free expression.
The primary Chinese organizer of the conference was He Weifang, a professor at Peking University Law School and a leading legal scholar in China, and Gewirtz gives him much of the credit for the open discussion at the conference. "He's very outspoken," said Gewirtz. "And he's outspoken in a way that invites others to debate."
The China Law Center and He Weifang plan to put together a book of papers and discussions from the conference, hoping to build a broader understanding of what constitutional review could contribute to China. The China Law Center and Peking University Law School will also be sponsoring a series of lectures and roundtable discussions with policymakers and scholars in China on free expression and the value of free speech to society.