GIZ’s Sino-German Legal Cooperation Program, commissioned by the German Federal Ministry for Economic Cooperation and Development, organized an online workshop with the Constitutional Law Department of the Legal Affairs Commission of the Standing Committee of the National People’s Congress (“NPC”) on November 28, 2022.
After opening remarks by Dr. Haase, Head of the Legal Cooperation Program, and Mr. Lei Jianbin, Head of the Department of Constitutional Law of the Legal Affairs Commission of the Standing Committee of the NPC, Ms. Gao Lina, Head of Unit in this same department, gave an introduction to the system of constitutional review in the Chinese legislative process. In particular, she also discussed the work of the Department of Constitutional Law, which works closely with the agencies responsible for drafting legislation and prepares summaries of constitutionally relevant issues for the Standing Committee of the NPC.
In their subsequent presentations, Dr. Bernd Küster (Federal Ministry of the Interior and Community) and Dr. Horst Heitland (Federal Ministry of Justice) introduced the constitutional review in the German legislative process. Right at the beginning of his presentation, Dr. Küster noted a common feature of both legal systems, namely that in both countries no law may contradict the constitution. However, there is a difference in that the examination of constitutionality in China is the responsibility of the parliament itself, whereas in Germany it is the responsibility of the federal government, in particular the two so-called constitutional ministries, i.e. the Federal Ministry of the Interior and Community and the Federal Ministry of Justice. The result of the constitutional review, Dr. Heitland explained, is a risk assessment; the risk is evaluated as to whether and to what extent a constitutional complaint against the planned law could be successful. He went on to explain that less than 1% of all laws are declared unconstitutional by the Federal Constitutional Court.
The presentations of the two German experts were commented on by two law professors, Prof. Li Zhongxia (Renmin University) and Prof. Zhang Xiang (Beijing University), who embedded the content into the Chinese context while also raising further questions. In doing so, the Chinese side showed particular interest in the procedure in case of disagreements, i.e. when ministries disagree on the constitutionality of a law, and in the review standards for the constitutional review. Since the constitutional review within the legislative process is based on the standards of the Federal Constitutional Court, the participants also discussed the significance of such a court – which does not exist in China – for the work of the legislator and for ensuring a constitutional legal system.
In her closing remarks, Ms. Wu, Deputy Head of the Legal Affairs Commission, who was recalling previous events and fact-finding missions, thanked the Legal Cooperation Program for the fact that the close cooperation with the Legal Affairs Commission has remained unchanged throughout all these years. Dr. Haase emphasized the importance and complexity of constitutional review in the legislative process and thanked for the opportunity to support the development of this field of law in China.