Fu, HL

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Title Constitutional Law in ChinaAuthor(s) Fu, HLCitation Hong Kong Law Journal, 2001, v. 31 n. 3, p. 544-546Issued Date 2001URL http://hdl.handle.net/10722/74823Rights Creative Commons: Attribution 3.0 Hong Kong LicenseConstitutional Law in China, Lin Feng [Hong Kong: Sweet & Maxwell Asia,2000, 378 pp, paperback, HK$1,295, US$1661.Dr Lin has written a very useful text on China's constitutional law for Englishreaders. It is the first English book that systematically introduces the consti-tutional structure and process in China and the academic debates on many ofthe important constitutional issues. For those who teach and study Chineselaw in English, this is a valuable addition to the limited English literature onChinese public law.The book can be divided into three parts according to the subject mattercovered. The first part, which includes the first two chapters, reviews Chi-nese constitutional history and principles. The author argues that while theConstitution remains dominated by the political ideology of the ChineseCommunist Party (CCP), it has started to recognise the value of the rule oflaw and the concept of individual rights.The second part (chapters 3-7) describes the formal structure and processof state institutions. Chapter 3 examines the congressional system, in par-ticular the role played by the National People's Congress and its StandingCommittee. Much of this chapter traces the theoretical origins of the con-gressional system in a socialist state, and highlights relevant differences with"western" parliamentary systems. The various aspects of the existing congres-sional system are sketched although not deeply analysed.Chapter 4 is a lengthy chapter that explores the structure of the legisla-ture and the legislative process in China in some detail, providing usefulinformation on China's emerging law-making procedures. Chapter 5 thenexamines the Executive, and the State Council in particular. It also com-ments on the evolving function of the President and the controversiessurrounding the Central Military Committee. However, the law-making func-tions of the State Council and its subordinate organs are mentioned only inpassing. This is surprising given the significance of administrative regulationsin Chinese law.Chapter 6 explores the relations between central and local governments.This chapter is well written. The author's insightful analysis of the differentdimensions of the central and local relations goes beyond the formal consti-tutional provisions and addresses many of the political and economic issues.Chapter 7 offers a good summary of the election law in China. Unfortunately,the only meaningful elections that currently take place in China, ie villageelections, are not mentioned at all. Chapter 8 briefly discusses the role of theCCP in China's constitutional structure and the limit of so-called multi-partyco-operation in China.The final part, consisting of the last three chapters, broadly explores thepossible constraints on state powers. Chapter 8 comments on the structure(2001) HKLJ544 ReviewHeinOnline -- 31 Hong Kong L.J. 544 2001and functions of the courts and the procuratorate. It also discusses the possi-bility for, and limits on, judicial independence. Chapter 9 addresses the issueof rights and duties in the Constitution. It traces the "western" and "Chi-nese" origins of the concept of rights, but says little on the protection of rights(or the lack of it) in the contemporary context. This chapter includes morediscussion of the concept of Asian values than I would expect, given that thistopic has attracted only limited interest within China and its academic circles.The last chapter examines the concept of congressional oversight of the imple-mentation of the Constitution, which has existed in China only in theory.The book peruses and summarises the academic debates on constitutionalissues in China and introduces overseas readers to the Chinese constitutionaldiscourse. The author's ability to draw widely on Chinese sources is a real strengthof the book. But this factor also underpins a weakness of the book. Because thebook relies so heavily on Chinese sources, it is constrained in its approach bythe boundaries set by the ongoing debate in China on constitutional law.In some respects, the book is more an introduction to Chinese constitu-tional scholarship rather than to the constitutional law of China itself. This isonly natural given the limited application of the Constitution and the fact thatthe Constitution is not justiciable. However, this inevitably limits the scope ofthe book, since topics for discussion within academic circles are still largelydetermined by the political sensitivity of the subject matter and the level oftolerance of the CCP itself. Therefore, issues that may not have any practicalrelevance, such as constitutional review, are discussed at great length in thisbook because they are not terribly sensitive and have attracted sufficient atten-tion in China. Unfortunately, much of that academic debate does not have anypractical relevance within China's political process, since it is concerned withwhat are in the end largely moot questions. Meanwhile, other, more directlyrelevant issues (such as the role of the CCP and human rights) are not suffi-ciently analysed because they are still very sensitive topics in China.A related problem is the lack of references to the English language litera-ture on China's Constitution and political system. For example, there is alarge body of literature on the people's congress, the judiciary and humanrights, and the CCP in particular. Failure to refer to those sources restricts thecontribution this book could have made to the ongoing dialogue betweenChinese and overseas scholars on this important topic.These shortcomings in the book are all related to the fact that the Chi-nese constitutional process is still profoundly political, making it difficult towrite on China's constitutional law in a conventional way. Dr Lin's booksucceeds in introducing Chinese constitutional theories to the English readerand providing a clear and thorough presentation of Chinese constitutionaldebate. However, its legalistic arguments are too reductionist and lack suffi-cient discussion of the political reality of Chinese constitutionalism. ThisVol 31 Part 3 Constitutional Law in China 545HeinOnline -- 31 Hong Kong L.J. 545 2001problem underscores the limits of a legalistic approach when applied to theChinese Constitution, which remains a fundamentally political document.H. L. Fu*Associate Professor, Faculty of Law, University of Hong Kong.546 Review (2001) HKLJHeinOnline -- 31 Hong Kong L.J. 546 2001

Constitutional Law in China

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