Constitutionalism in China: Torn between judicial independence and structural interference
Tim Hagemann gives an introduction to Chinese constitutionalism with a focus on the civil liberties granted by the Chinese constitution, their legal protection and structural challenges.
In this short series, Tim Hagemann gives an introduction to Chinese constitutionalism with a focus on the civil liberties granted by the Chinese constitution, their legal protection and structural challenges as well as reform efforts from inside and outside the Communist Party. This first part will address specifically the status of the current Chinese constitution, the protection of civil liberties and the question of judicial independence.
The series is based on an extensive research paper from 2014 that was made by the author under the supervision of the responsible professor of Chinese Constitutional Law at China University of Political Science and Law (中国政法大学) in Beijing.
To begin with, it is important to understand what is meant when we talk about “constitutionalism” in this context. The term “constitutionalism” should not be equated or even confused with the often synonymously utilized term “Rule of Law” (法治). While the principle of “Rule of Law” – at least in its most common (narrow) interpretation – only requires the indiscriminate observance of the law in relation to all members of society as a superior set of rules, the idea of constitutionalism (宪政) goes one step further. In accordance with the concept of constitutionalism, laws (especially those granting civil rights) established by the Constitution and Legislature should not only be protected and implemented irrespective of the position of the person or organization concerned; beyond that it postulates the necessity of a democratically legitimized system for the protection of individual liberties only accomplishable in a state of judicial independence. 
This distinction can be illustrated in particular in the comparison of western constitutions such as the German Basic Law. From the perspective of the Basic Law, German constitutionalism is constitutionally substantiated by the principles of democracy and rule of law, which in particular shape the state's attachment to fundamental rights, the division of powers, as well as the judicial protection of rights and the democratic legitimacy of state power. 
The establishment of a socialist constitutional state (法治 国家) , already defined by the government in 1999 as a state goal, merely commits the Chinese state and by that the Communist Party to complying with the laws it has enacted itself as the CCP holds the constitutionally required majority since the establishment of the People's Republic in 1949 without interruption.Accordingly, the Constitution, formulated less in the form of legally binding norms, but rather as a collection of political declarations and state objectives, has been renewed after every major change of course in the Communist Party (four times in total, most recently in 1982). 
The four political guidelines set forth in the preamble of the current constitution include the principle of leadership by the Communist Party, the guidance of Marxism-Leninism and Mao Zedong ideas (毛泽东 思想), the principle of the Democratic dictatorship of the people (人民 民主专政) and adherence to socialism. It should not be forgotten at this point, therefore, that the Constitution not only approves, but expressly envisages the governmental rule of the Chinese Communist Party at all levels. The system of independence of the judiciary associated with the concept of constitutionalism and the equality of all individuals, authorities and organizations before the law, to say nothing of the democratic legitimacy of the state organs by the population, are thus already severely restricted by the constitution.
The status of the constitution
The Constitution of the People's Republic of China is at the top of the statutory hierarchy of norms, followed by all formal laws as well as administrative and local regulations. In addition to the political guidelines and general state organization regulations, it also contains a comprehensive catalog of fundamental rights. In fact however, the Constitution was unable to develop any particular relevance to the lives of the Chinese population. Although the constitution guarantees, inter alia, the right to vote,  freedom of expression, press and assembly,  as well as of religious belief,  these rights are in practice greatly limited by law and administration due to the dominant one-party system of the CPC. 
On the one hand, this is due to the fact that while the fundamental rights are in principle granted to every citizen, they are nevertheless subject to very broad constitutional reservations. For all freedoms granted, the general reservation that the interests of the State must not be violated by the liberties exercise is a key aspect of Chinese constitutional rights, while freedom of religion is subject to even more severe restrictions. While every citizen is entitled to pursue "ordinary" religious activities,  those activities that may interfere with the state’s public order or the educational system are expressively prohibited.  What exactly defines such religious behavior is not further articulated by the constitution and thus subject to the CCP’s interpretation. In practice, it excludes anybody who adheres to religious communities outside the canon of five officially recognized religions (Buddhism, Daoism, Islam, Protestantism and Catholicism) in their form as state-conformist, supervised “patriotic organizations”.
But even the legal protection for fundamental rights that do not specifically affect the vital interests of the state remains underdeveloped. The main reason for this lack of development is the constitutionally not explicitly clarified question of which state organ is responsible for constitutional supervision. Unlike in most other states disposing of a constitution granting certain civil liberties, there is no constitutional court in the People's Republic. According to a part of the literature, this vacuum is to be filled by the National People's Congress (全国人大) and its Standing Committee. The National People's Congress is the central parliament in the People's Republic of China, and as such the highest body of state power. It exercises legislative power in accordance with its elected Standing Committee (a body representing the NPC between plenary sessions) and controls judiciary, administration and criminal prosecution.
By supervising judicial decisions by the legislature, there is neither a clear separation of powers nor a sufficient system of checks and balances, but parliamentary absolutism (议会专制)  exercised by the NPC. According to the literature, this position leads to a ban on the control of the NPC’s legislative work, which as the highest organ of the people’s will and the state’s power shall dispose of the ability to identify unconstitutional legislature and to correct its own decisions if it sees the necessity. 
Nevertheless, since the return to legal certainty after the end of the Cultural Revolution, private individuals have increasingly sought to enforce their constitutional rights before ordinary Chinese courts. In particular, the case of Qi Yuling v. Chen Xiaoqi became the subject of public debate. When in 1990, Ms. Qi passed an entrance examination for medium-sized technical colleges and was then accepted by a commercial school to study, her colleague Ms. Chen managed to obtain possession of the registration certificate before it reached Ms. Qi.  Under Ms. Qi's name, Ms. Chen then attended the commercial school and after graduation, worked under the alias of Qi Yuling for a regional bank. When Ms. Qi learned of this in 1999, she sued Chen Xiaoqi, the bank and the commercial school for injunctive relief and damages, citing her constitutional right to education and ownership of her name.  In 2001, the Supreme People's Court (中华人民共和国 最高人民法院), the highest court in the mainland region of the PRC, ruled that the right to education was eligible as a legal basis, although it is constitutionally not entitled to review the Constitution.The debate following this verdict on establishing a constitutional jurisdiction subsequently became one of the most important and widely discussed research topics in Chinese constitutional theory. 
Accordingly, the People's Court Daily, the official press body of the Supreme People's Court, published an article of the lead judge and deputy director of the court Huang Songyou (黄松 有) the same year in which he paralleled Qi Yuling v. Chen Xiaoqi with the US Supreme Court’s landmark decision Marbury v. Madison,  arguing for the American model in which courts are able to rely on constitutional law and review laws in terms of their constitutionality.  The Supreme Court had to lift its decision in 2008 on political pressure, however, as the party elite felt that a constitutional decision-making body would be able to shift the political structure in the People's Republic to the detriment of the NPC and thus of the Communist Party.  Supreme Court Judge Huang was removed from office by the Communist Party in the same year, put under arrest and later sentenced to life imprisonment for corruption in 2010. 
While it seems that the attempt to assess constitutional law by independent courts has failed for the time being, the situation is more nuanced in the case of substandard norms.  Pursuant to § 90 I Legislative Act, in case of doubts about the conformity of substandard norms with formal laws or the constitution, the State Council, the Central Military Committee, the Supreme People's Court, the Supreme Prosecutor's Office and the People's Congresses of the Provinces may request a review by the Standing Committee of the NPC. Ordinary citizens and authorities may only encourage a review.  If the NPC identifies an unconstitutional or unlawful act and the relevant legislator is unwilling to amend the norm, the NPC has the power to revoke it. The courts of all levels, however, are prohibited from arbitrarily declaring legal norms unconstitutional or unlawful, but in case of doubt they are free to dispense with the application of the corresponding norm. 
The status of judicial independence
Since the concept of a Socialist Rule of Law State was integrated into the constitution in 1999, the implementation of the Rule of Law as an important building block for the unity and stability of the socialist state system has become a guideline for the CPC. But although there has been a deepening government effort to enforce the Rule of Law system in China, it is not yet possible to speak of an independent judiciary. First of all, this is based on the dependent position of the judges in the Chinese procedural code and the applied legal practice. While with the introduction of the Judiciary Act, the judges position to make their decisions without the influence of social organizations, authorities, or individuals should have been strengthened, there margin of discretion is nevertheless severely compromised by the supervision of their decisions by the people’s procuratorate and people's congresses. From this follows not only the already mentioned right of the NPC to declare laws and legal norms ineffective, but also the possibility for people's congresses of all levels to put individual cases under their supervision (judicial monitoring procedure). While the independence of the judges is inevitably influenced by the monitoring and by the partially made recommendations by committees of the People's Congress, the courts remain at least formally independent, and the people's congresses only relatively rarely employ this means.  The People's Procuratorate is also entitled to a right of appeal of first instance judgments, independent of the parties to the dispute, if he finds this is in the public interest (prosecutorial protest). Contrary to the previous unwritten hierachy that made the courts merely the executor of the procuratorate’s will, nowadays the vast majority of the prosecution's lawsuits are forfeited, underscoring the ever-increasing self-confidence of the judiciary in defending its independence against the People’s Procuratorate. 
In addition, there are also strong dependencies in relation to the local administration, as these usually determine the budget of the courts in their area of responsibility. In these circumstances, it is not surprising that in the past, local governments have exerted influence on the decisions of the People's Courts in important disputes in order to gain an advantage over their competitors from other regions in the internal Chinese fight for investment, market shares and employment. As the costs of operating the courts are constantly increasing while the financial compensation is based in particular on the process utilization, people's courts in retired areas often come under heavy financial pressure. In order to compete with the higher wages of the urban courts in Shanghai or Guangdong and attract more qualified personnel, some courts have in the past tried to enhance the number of their processes by the free interpretation or the ignoring of judicial rules and by restraining the involved Parties to initiate class action lawsuits or by the cessation of ongoing proceedings.
Even within the courts, the hierarchy of judges can lead to dependencies among themselves. The ranking of the judges is divided from the ordinary to the highest judge in 12 stages. Ranks are assigned on the one hand according to position, seniority, professional competence and work performance, but on the other according to political behavior.  Although no judge can be disciplined without a legal reason and legal procedure, they can, however, be dismissed on grounds of poor assessment by their superiors, which in reality gives the judge a strong influence on their subordinate’s jurisdiction. Additionally, one of the most controversial instruments in the Code of Procedures has been the judicial committees that have to be established at every stage of the judicial system (审判 委员会).  These are composed of experienced judges, the court president and his deputies as well as the chairman of the chamber and his deputy. Together, they make judgments in cases deemed too complicated for younger judges, but likewise in those circumstances where the trial matter is politically sensitive or important to the state while they neither appear recognizable to the outside as decision-makers, nor participate in the trial itself. The reports of their meetings, where the relevant representative of the People's Procuratorate takes part, are classified and treated as state secrets. The decision-making and, in particular, the influence of the People's Procuratorate are therefore obscure and the judge who is mainly involved in the case does not have any influence on the final judgment. Supporters of the system, however, see the judicial committees as the only means of compensating for the inadequate training of lower courts' judges and overcoming the wide-spread corruption at lower and middle-sized people's courts. From their perspective, the participation of a large number of high-ranking and experienced judges was an effective means of restricting financial corruption of private individuals as well as the influence of local cadres. Like the judicial committees, the already customary procedure of the question-and-answer mechanism (案件 请示 制度) is based on the inadequate professional competence of the lower courts. In this procedure, a judge addresses the next higher instance in matters relating to an ongoing trial and may use his opinion as the basis for his own decision. However, as the effective remedy to a judgment is limited to just two levels, an appeal to the higher judicial level becomes practically ineffective, which is why it is slowly being removed by the government in the course of its rule of law efforts.
Often ignored by western commentators in the evaluation of Chinese rule of law is a specifically Chinese aspect of judicial influence: the exercise of social pressure and the exploitation of private ties to achieve a favorable judgment. Thus, judges are besieged in controversial criminal or commercial legal processes by a large number of outsiders who would like to promote one of the parties involved. A common means is to pay journalists and local media to cast a positive light on their own position while concealing the truth, and to put pressure on the judge through the means of public opinion. A study commissioned in 1993 surveying the independence of Chinese judges came to the conclusion that the surveyed judges found that they did not saw the Communist Party (8%) or the governing bodies in general (26%) as main reason for judicial interference, but social contacts and networks (29%).
The Role of the Communist Party
Although the influence of state organs and influential persons is naturally very high due to the authoritarian character of the Chinese state, the extent of the party's direct influence as a political organization is controversially discussed among scholars. For example, Randall Peerenboom, one of the most respected researchers on rule of law in China, underlines that the party's influence on the People's Courts has drastically diminished since the early 1990s and that one should not confuse the interference of individuals with party affiliation interference of the party itself. However, it can not be denied that in some cases the party actually has a direct influence on the decisions of the people's courts. Although the Communist Party is not an official organ of the state, it does have an organizational structure which is in line with the political institutions of the People's Republic and, in accordance with the Constitution, exercises sole political leadership over the state.
Accordingly, the People's Courts have a parallel organizational structure of the party, which has the final decision-making power through the control of the Commission for Politics and Law (中央 政法 委). Although the commission has an outstanding amount of power in the supervision and control of the judiciary, it intervenes only in relatively few cases directly.  As all the court presidents and an overwhelming share of the other judges are party members, one explanation for the low proportion of direct interventions could therefore be that the commission already indirectly exercises its control on the judges and prosecutor’s through its decision-making authority to appoint the highest offices in the judiciary and that therefore no direct influence is necessary. Thus, a career in the judiciary without party affiliation is virtually impossible and inconvenient lawyers may be denied the renewal of their license by the Bar Associations which are directly under the control of the Ministry of Justice. On the other hand, the party's interest in ensuring national stability and prosperity, and thus its own legitimacy, must be taken into account here: the CPC wants to be perceived by the population as a guarantor of fair and equitable jurisdiction and, on the other hand, not to take the risk scare off foreign investors who fear for the legal certainty of their investments.
Accordingly, Xie Chuntao, a professor at the CP Party Party School, argues that the rule of the law is over man's rule, because the rule of law is better suited to governing the country in a stable and peaceful manner in the interests of the party. However, the direct influence of the CPC on trials and processes that touch the core of their claim to sovereignty such as their sole claim to leadership of the country or where crimes of high officials are involved, remains undisputed. For example, former Supreme People's Court chief Xiao Yang (肖扬) argues that the constitutionally guaranteed right of the courts to judge independently of any influence does not include independence from the party, but rather that judges on the contrary must show a high degree of responsibility towards the party’s projects. The desired development of the rule of law in China should therefore by no means be misunderstood: in the view of the political leadership, China of today does not represent a rule of law state including, but under the Communist Party.
The second part of the series on Chinese Constitutionalism will feature the internal struggle for constitutionalist reform inside the Communist Party, the third part reformist tendencies from outside the political establishment.
 Tamanaha, Brian Z.: “The Rule of Law for Everyone?” St. John's Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=312622
 Goodin, Robert E.: Pettit, Philip; Pogge, Thomas W.: „A Companion to Contemporary Political Philosophy“, Wiley-Blackwell, 1st Edition, 2007, Chapter 22.
 Ahl, Björn: China auf dem Weg zum Rechtsstaat?, In: Politische Meinung, 2005, p 25 ff.
 Art. 5 I Constitution.
 Peerenboom, Randall: China's Long March towards Rule of Law; Cambridge University Press, Cambridge, 2002, p 56.
 Heilmann, Sebastian: Das politische System der Volksrepublik China, 2004, p 79 f.
 Feng, Lin: Constitutional Law in China, 2000, p 23 ff.
 Preamble para V Constitution.
 § 78 Legislature Law.
 Cf. Chapter II Constitution: Civil liberties and Civil duties of citizens, Art. 33 – 50 Constitution.
 von Senger, Harro: Einführung in das chinesische Recht, 1994, p 204 f.
 Art. 34 Constitution.
 Art. 35 Constitution.
 Art. 36 Constitution.
 Bu, Yuanshi: Einführung in das Recht Chinas, 2008, § 6 para 74.
 Art. 36 III 1 Constitution.
 Art. 36 III 2 Constitution.
 Bu, Yuanshi: § 6 para 34.
 Art. 57 Constitution
 Art. 58, 65 III Constitution.
 Peerenboom: Globalization, Path Dependency and the Limits of Law, p 198.
 Bu, Yuanshi: § 6 para 69.
 Cf. Tong, Zhiwei: A Comment on the Rise and Fall oft the Supreme People’s Court’s Reply to the Qi Yuling’s Case, Suffolk University Law Review, 2010, S. 670 f.; Dayuan, Han: Untersuchung über die verfassungsrechtlichen Fälle in China, Volume I, 2005, p 1 ff.
 Art. 46 Constitution.
 Art. 27 Constitution.
 Jihong, Mo: p 412 f.
 Marbury v. Madison, 5 U.S. 137 (1803): The decision by the US Supreme Court granted the court to review laws on their constitutionality and by that, laid the foundation for an independent Constitutional court in all modern rule of law states.
 Tong, Zhiwei: p 672.
 Tong, Zhiwei: p 677.
 „Chinese Supreme Court judge gets life term“, Xinhua News, 20.01.2010, Abrufbar unter: http://news.xinhuanet.com/english2010/indepth/2010-01/20/c_13143957.htm
 These are in detail: Administrative regulations, local regulations, autonomy regulations and individual regulations.
 § 90 II Legislature Law.
 § 91 II Legislature Law.
 Bu, Yuanshi: § 6 para 72.
 Chuntao, Xie: Governing China – How the CPC works, 2013, p 229 f.
 § 8 Nr. 2 Judiciary Act.
 Art. 3 III, Art. 104 Constitution, §§ 17 f. Law concerning the Organization of the People’s Procuratorate.
 Peerenboom, Randall: Judicial Independence in China – Common Myths and unfounded assumptions, La Trobe Law School Legal Studies Research Paper No. 2008/11, p 15.
 Cf. para 38.
 Bu, Yuanshi, § 3 para. 8.
 Peerenboom, Judicial Independence in China, p 18.
 Bu, Yuanshi: § 3 para 11.
 Heuser, Robert : Grundriss des chinesischen Wirtschaftsrechts, 2006, p 47.
 Peerenboom, Judicial Independence in China, p 7.
 § 19 Judiciary Act.
 § 40 Richtergesetz
 Bu, Yuanshi, § 3 Rn. 16.
 Bu, Yuanshi: § 3 Rn. 13.
 Peerenboom, Randall: China Modernize, 2007, S. 212 f.
 Peerenboom, Judicial Independence in China, S. 12.
 Peerenboom: Judicial Independence in China, S. 11; Bu, Yuanshi: § 3 Rn. 16.
 Fn. 55.
 Bu, Yuanshi: § 3 Rn. 14.
 Vgl. 2. Fünfjahresplan des Obersten Volksgerichts 2005.
 Vgl.: Bu, Yuanshi, § 6 Rn 30 – 32; Peerenboom, Judicial Independence in China, S 12 ff.
 Peerenboom, Judicial Independence in China, S. 13 f.: According to Peerenboom, the political orientation of a person cannot be determined by his party membership alone as the party hosts reformers as well as conservative, especially since CPC membership is commonly employed as a means to career development.
 Preamble para V Constitution.
 Bu, Yuanshi, § 6 para 31; Heilmann, p 89 ff.
 Cf. Peerenboom, Judicial Independence in China, p 14.
 Bu, Yuanshi, § 3 para 12.
 To be fair, it should be noted that the appointment of senior judicial posts by political criteria is not a unique feature of authoritarian states such as the People's Republic of China, but also occurs in Western democracies. As a prominent example, reference is made here to the US Supreme Court.
 In 2008, a group of 53 Beijing lawyers protested by writing to the judicial authority for a Democratic election of the Bar Associations. The protest was unsuccessful and all signatories were subsequently revoked the license, cf. Sanderson, Henri: „China Lawyers call for more open bar association“, Online edition of USA Today, 09.11.2008, http://usatoday30.usatoday.com/news/world/2008-09-11-360255464_x.htm
 Fn. 60.
 Xie, Chuntao, p 231 f.
 The most well-known example of this is certainly the case against former Chongqing mayor Bo Xilai, who was sentenced to life imprisonment on charges of corruption.
 Yang, Xiao: A correct concept of judicial authority ist the proper meaning of rule of law, 正确的司法权威观是法治的应有之意," 中国法院网,18.10.2007, http://old.chinacourt.org/html/article/200710/18/270093.shtml