Friday, 10 May 2019, at 10:30

Faculty of Law, University of Zagreb

Trg Republike Hrvatske 14, “Vijećnica” (Council Hall, 2nd floor)

Assist. Prof. Zheng Zhu, Ph.D., LL.M.
China University of Political Science and Law

Zheng Zhu is an Assistant Professor at the Law School of China University of Political Science and Law. He has a Ph.D. from University of Hull in England and an LL.M. from University of Pacific, McGeorge School of Law. His research and teaching focuses on constitutional law, in particular on issues relating to Hong Kong Basic Law, comparative constitutional law and constitutional theories.

Abstract

Although the 1982 Chinese Constitution explicitly promised that the State respects and preserves human rights, the Constitution provisions are not justiciable in practice, which means that the human rights' protection provision in the Constitution cannot be cited by the courts in litigation, nor can it be referred to in judicial review. It is said that this model preserves the supremacy of the National People's Congress, however, it means in effect the Constitution only offers a lip-service to the protection of human rights. Further, it not only undermines the authority of the National People's Congress but also impairs people's trust in the Constitution. It may be suggested that Sections 3 and Section 4 of the UK Human Rights Act shed some light on solving this dilemma: a compromise resolution that avoids empowering the judiciary to strike down statutes while allowing judges to make a "declaration of incompatibility" somehow relieves the tension between the courts and Parliament. However, it should be noted that a mature common law system set the context for the HRA mechanism to work. Besides, democratic expectations arguably put pressure on the Legislature to amend legislation in accordance with the courts' declaration. More importantly, as the Chinese Constitution clearly provides that only the Standing Committee of the National People’s Congress can interpret the Constitution, the courts are barred from making a constitutional review. Thus, it seems that the only way for China to implement its constitution is through legislation and the NPC-led constitutional review mechanism.

Keywords: Constitutional review, Human Rights Act 1998, Constitution of China