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Mo Jihong: The Jurisprudence and Stratification of the Constitutional Review of Autonomous Regulations and the Separate Regulations

In his recently published article “The Jurisprudence and Stratification of the Constitutional Review of Autonomous Regulations and the Separate Regulations” (Guansu Social Sciences, 2 (2019)), Professor Mo Jihong proceeds from the institutional design that autonomous regulations and separate regulations are subject to the constitutional review by the Standing Committee of the National People’s Congress, as provided for in the relevant provisions of the Legislation Law, analyzes the characteristics of the confirmation of legislative mechanism for the adoption of autonomous regulations and separate regulations by the Constitution, the Legislative Law, the Law on Regional National Autonomy and other laws, and points out that the constitutional review of autonomous regulations and separate regulations consists of two levels: at the first level is the constitutional review of the autonomous regulations and separate regulations adopted by autonomous regions; and at the second level is the constitutional review of the autonomous regulations and separate regulations adopted by autonomous prefectures and autonomous counties. Of the two levels of constitutional review, the former can only be carried out before the entry into force of the autonomous regulations and separate regulations whereas the latter should be carried out after the entry into force of the autonomous regulations and separate regulations. Professor Mo believes that the particularity of the procedures for the approval and coming into force of autonomous regulations and separate regulations stipulated in the Constitution and the Legislation Law has made it difficult to simply apply the principle of “the lower-level law being subject to the upper-level law” to the legislative supervision over the adoption of autonomous regulations and separate regulations. It is therefore necessary to strictly distinguish different levels of the legal effect of autonomous regulations and separate regulations and establish a corresponding hierarchical constitutional review mechanism. Since the Legislation Law provides for the system whereby the Standing Committee of the National People's Congress reviews the constitutionality of autonomous regulations and separate regulations of autonomous regions, including those approved by itself, the NPC Standing Committee may carry out self-supervision in practice. Therefore, in the practice of constitutional review, efforts should be made to promote the constitutional review of autonomous regulations and separate regulations, and to distinguish between different situations, so as to find specific solution suited to each situation.