New NPC body to address law conflicts
(China Daily)
Updated: 2004-06-21 07:47

(Continued)

The Henan Provincial People's Congress Standing Committee later issued a notice claiming Li's ruling was an "illegal review of the local regulation in nature and encroached on the functions of the legislative body."

But both the Constitution and the Law on Legislative Procedures stipulate local regulations should not contradict national laws.

This case again triggered debate on whether China should establish a judicial review mechanism, a long-debated topic in the legal profession.

Wang Zhenmin said the conflicts in legislation are caused by the multi-layer lawmaking mechanism.

Although the Constitution states the NPC and its Standing Committee exercise the power of lawmaking, the State Council, not only local people's congresses but also administrative departments at both central and local levels are entitled to make regulations within their jurisdictional areas.

It is often the case that one issue is governed by two or even more different regulations, sometimes with substantially different stipulations.

"Beneath the conflict of legislation lies the conflict of interests of different departments and local administrations and, in a word, power distribution," Wang said.

Wang said the country should improve its mechanism for dealing with constitutional oversights to prevent constitutional violations and reduce if not eliminate legislative conflict.

He suggested that the top legislature consider establishing a Constitutional Committee or a Constitutional Court that would guard against constitutional violations and undertake a function similar to the judicial review system in the common law system.

The term judicial review refers to a constitutional doctrine that gives the court system the power to annul legislative or executive acts which the judges declare unconstitutional.

More efforts needed

In the common law system, which was developed in England, courts have the right to review the constitutionality of legislation and can refuse to apply unconstitutional legislation.

In the civil law system, which may be traced back to Roman law, from which most European legal systems originated, judicial reviews are usually handled by a constitutional court or constitutional committee.

In China there were vague procedures for the review of laws before 2000 when the Law on Legislative Procedures was endorsed.

The Law on Legislative Procedures empowers citizens and administrative and judicial bodies to submit written requests to the NPC Standing Committee for final review of conflicting legislation.

It is a way to supervise implementation of the Constitution and laws when a judicial review mechanism has not yet been established in this country.

In Li's case, four lawyers sent a written proposal to the NPC Standing Committee in November 2003 suggesting the top legislative body should review the validity of the local regulation and issue a prompt rectification of administrative regulations and local legislation that conflict with the Constitution and laws of the country.

So far, no progress has been made in Li's case.

Wang said the new agency set up by the NPC Standing Committee should conduct its legislative review in a transparent fashion.

"I think they should conclude each case with a formal written judgment supported by adequate reasons, instead of solving the problem behind close doors," Wang said.

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