Constitution and Privacy:
How China Found a Local Regulation Unconstitutional

宪法和隐私:
中国如何认定一项地方性法规违宪

By: Dr. Mei Gechlik / On: July 13, 2022

Bushko Oleksandr/Shutterstock.com

Recent rulings of the U.S. Supreme Court on issues concerning abortion and firearm regulation have drawn worldwide attention.  Interestingly, on the other side of the globe, a decision by China’s national legislature that a local regulation was inconsistent with the country’s constitution (thereby triggering an amendment to the local regulation) has gone almost unnoticed.  What was the decision about?  How was it made?  More importantly, how can such an exemplary instance illustrating the constitutional review of Chinese legislation be better known and used to produce more positive impact?   

The Flawed Local Regulation

The local regulation at issue allowed certain administrative departments of a local government to impose mandatory paternity tests on individuals investigated for violations of “family planning” rules in China.  In addition, according to the local regulation, anyone who refused to go through the required paternity test would be subject to a fine of up to RMB 50,000.  Concerned about these requirements, multiple citizens submitted, through a formal process (see below), to the Standing Committee of the National People’s Congress (i.e., China’s national legislature) their suggestions for reviewing the local regulation.

As reported by SHEN Chunyao, Director of the Legislative Affairs Committee of the Standing Committee of the National People’s Congress, the local regulation was found, during the review, to be inconsistent with the Constitution of the People’s Republic of China for the following reasons:

Our review finds that parent-child relationships involve citizens’ personal dignity, identity, privacy, and the harmony and stability of family relations, [all of which] are basic rights and interests of citizens and are protected by the Constitution and laws.  It is inappropriate for a local regulation to provide for mandatory paternity testing, nor should [the local regulation] set forth corresponding administrative penalties, sanctions, and treatment measures. (emphasis added)

Although the above quoted paragraph does not specify the relevant constitutional provisions, it is clear that Article 38 of the Constitution of the People’s Republic of China explicitly protects citizens’ “personal dignity”.

Mr. Shen’s report continued to point out that “after communication, the organ that formulated [the local regulation] has amended relevant provisions”.  No further details about the local regulation are provided in the report.  For example, it is not disclosed which provincial legislature formulated the local regulation, nor are the provisions of the local regulation before and after the amendment quoted for comparison.

The Review Mechanism and Its Significance

The review of the above-mentioned local regulation was initiated through a special mechanism provided by Article 99 of the Law of the People’s Republic of China on Legislation.  The mechanism allows citizens to invoke a process that examines both the constitutionality and legality of a local regulation.  Article 99 states:

[… Any] social organization, enterprise, public institution, or citizen that believes that […] a local regulation […] is in conflict with the Constitution or a law may submit to the Standing Committee of the National People’s Congress a written suggestion for review, and the work division of the Standing Committee shall conduct research and shall, when necessary, refer such a suggestion to the relevant specialized committee for conducting a review and providing opinions. (emphasis added)

This review mechanism is of exceptional significance because citizens in China cannot resort to courts in China to seek judicial review of a local regulation. 

According to the Administrative Litigation Law of the People’s Republic of China, a citizen who brings suit to challenge an “administrative act” undertaken by an authority may concurrently request that the court review the legality of the “regulatory document” upon which the “administrative act” is based.  But, in this context, the type of “regulatory document” that can be judicially reviewed is limited to those that are ranked much lower in China’s complicated system of legal rules.   In addition, even if the court considers a “regulatory document” to be illegal, the court cannot strike it down directly, but can only “provide the organ that formulated the [regulatory document] with recommendations on [how to] handle [the document]”.

Improvement: A Public Database

In light of the limited role played by courts in the review of Chinese legislation, the review undertaken by the Standing Committee of the National People’s Congress and its specialized committees is crucial to the long-term development of the Chinese legal system.  To strengthen this review mechanism, it would be desirable to have a public database of exemplary instances illustrating how a piece of legislation (e.g., the flawed local regulation discussed above) is brought in line with the Constitution and national laws.  Specifically, detailed content of the legislation before and after amendment, including a side-by-side comparison of the language added or deleted, should be provided for in-depth study.    

This database is more needed than ever because, according to Mr. Shen’s report, 6,339 suggestions for review were received from citizens and organizations in 2021 and more than 5,000 of these suggestions were related to local regulations or lower-level rules.  Does this large quantity of suggestions for review reflect inadequate legislative competence at the local level, insufficient understanding of citizens and organizations about legislation (resulting in unwarranted suggestions), or both?  No matter what the causes are, exemplary instances saved in a public database will help educate local legislators and the public, enhancing the quality of both legislation and suggestions for review.  Consequently, the national legislature can devote its limited resources to ensuring that its review mechanism will be used effectively to tackle legislative deficiencies of which local legislators are unaware despite knowledge and skills acquired from the public database.


The citation of this article is: Dr. Mei Gechlik, Constitution and Privacy: How China Found a Local Regulation Unconstitutional, SINOTALKS.COM, In Brief No. 16, July 13, 2022, https://sinotalks.com/inbrief/2022W27-english.  This article was first published on LinkedIn on July 6, 2022, https://www.linkedin.com/pulse/constitution-privacy-how-china-found-local-regulation-dr-mei-gechlik.

The original, English version of this article was edited by Nathan Harpainter.  The information and views set out in this article are the responsibility of the author and do not necessarily reflect the work or views of SINOTALKS.COM.

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