Constitutionalism with Chinese characteristics? Constitutional development and civil litigation in China

International Journal of Constitutional Law

Volumn 7, Issue 2, 2009, Pages 215-246

  Kellogg, Thomas E ^a,b  

^a Open Society Institute   (Thailand)

^b FORDHAM UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 64049116807     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mop001     Document Type: Article

References (99)

1. Ann Kent, Waiting for Rights: China's Human Rights and China's Constitutions,1949-1989, 13 HUM. RTS. Q. 170, 182 (1991).
2. In this way, as will be discussed in more detail below (infra, at text accompanying note 5), the Chinese Constitution is typical of the classic Soviet-style constitutional model on which it was based. One scholar of Soviet law noted that socialist constitutions "seem to be... 'basically action programs to be translated into political practice."' John N. Hazard, A Soviet Model for Marxian Socialist Constitutions, 660 CORNELL L. REV. 985, 986 (1974-1975).
3. See, e.g., Albert Chen, An Introduction to the Legal System of the People's Republic of China, in YASH GHAI, HONG KONG'S NEW CONSTITUTIONAL ORDER: THE RESUMPTION OF CHINESE SOVEREIGNTY AND THE BASIC LAW 89 (2d ed., Hong Kong Univ. Press 1999). Chen notes that: The theoretical supremacy of the constitution may not however mean much in practice. Constitutions in communist states have traditionally been regarded as directives or guidelines for the legislature, so that the constitutional provisions are not directly enforceable in the absence of implementing legislation. This seems to be the case in China.... Apparently courts are not allowed to rely on constitutional provisions directly in deciding a case and can only apply the ordinary legislation (if any) through which the constitution is implemented. Chinese courts do not of course enjoy the power of review of legislation with regard to its conformity to the Constitution. (emphasis added)
4. See YASH GHAI, supra note 2, at 127. "There is little point in examining in detail either the rights [protections found in the Constitution] or limitations on them, since the rights are not enforceable as such, nor is the legislation giving (or not giving) them judicially reviewable."
5. THE LAW OF THE SOVIET STATE 312 (Andrei Y. Vyshinsky ed., Hugh W. Babb trans., Macmillan 1948).
6. As with all legal systems, there are significant differences between the formal system as delineated in the Constitution and the system in practice. Although the NPC is the highest organ of state power, it meets too infrequently and is too large and unwieldy to exercise all of the powers granted to it under the Constitution. In practice, the NPCSC and the State Council exercise a much higher degree of authority than does the NPC itself. Although the NPC is no longer quite the docile rubber stamp it once was, it does not serve as a fully functioning legislature. The Communist Party also exercises significant influence and oversight over all major government decisions, despite the fact that it is granted no formal powers under the Constitution. For a more detailed account of China's governmental structure as it operates in practice, see ANTHONY SAICH, GOVERNANCE AND POLITICS OF CHINA (2d ed., Palgrave Macmillan 2004).
7. CONST. art. 2, §§ 1, 2 (P.R.C.).
8. Id. art. 3, §§ 1, 3 (P.R.C.). The authority of local people's congresses over local courts is reiterated in article 128 of the Constitution; this dynamic arguably does more than any other single provision structurally to limit judicial independence in China.
9. Some scholars have suggested that a 1957 opinion issued by the NPCSC is a nascent example of constitutional interpretation by the Standing Committee. In response to a query by a court in Tianjin, the Standing Committee declared that issuing a summons to a People's Congress delegate did not, in fact, infringe upon the individual's constitutionally protected freedom of person. See XIANFA XUE [CONSTITUTIONAL LAW] 118-119 (Zhang Qianfan et al. eds., 2004).
10. Li fa fa [Law on Legislation] art. 2 (adopted at the Third Session of the Ninth Nat'l People's Cong., Mar. 15, 2000) 2000 STANDING COMM. NAT'L PEOPLE'S CONG. The full text of the Law is available online at: http://english.gov.cn/laws/2005-08/20/content_29724.htm.
11. Id. art. 87, §2.
12. Id. arts. 88, 90, 91.
13. For more on constitutional petitioning, including a detailed account of the most famous constitutional petition, that of the Sun Zhigang case, see Keith J. Hand, Using the Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People's Republic of China, 45 COLUM. J. T RANSNAT'L L. 114 (2006-2007). In May 2004, with much fanfare, the NPCSC established the Regulation Filing and Review Office (fagui shencha bei'an shi; hereinafter "Filing Office"). The office serves as the receiving agent for all legal documents that, under the Legislation Law, must be filed with the NPC, and also as the presumed recipient of any petitions filed under the article 90 review mechanism. Though some government officials indicate that the Filing Office does engage in active review of the legality and consistency of legal documents and has even, in some cases, reached out to administrative bureaus to seek legal change, there is no indication that the Filing Office, as yet, has engaged in any constitutional review; the prospects for the Filing Office to grow into such a role seem unlikely.
14. The Chinese term for such responses is pifu.
15. The full text of the 1955 response can be found in WANG LEI, JUDICIALIZATION OF THE CONSTITUTION IN CHINA: SELECTED CASES 1 (2003).
16. The full text of the 1986 response can be found in id., at 1-2. A partial translation reads as follows: To the Jiangsu Province Higher People's Court: We have received your query (qingshi). Regarding the question of how People's Courts should cite legally normative documents in official court legal documents. After researching the question, we offer the following response: Under the Constitution and the relevant provisions of the People's Congress and the People's Government Organization Law, state legislative power is exercised by the NPC and the Standing Committee. The response goes on to list the various normative documents that can be cited in different adjudicative situations; the fact that the Constitution is not mentioned affirmatively as a source that may be cited is taken by many scholars to mean that it cannot be.
17. WANG LEI, supra note 13, at 5: "Use of the Constitution by the courts does not mean that the courts have the power to engage in judicial review, or the authority to declare laws invalid." In Wang's view, the judicialization verdicts that have been issued thus far - some of which are discussed in more detail below - illustrate the dynamic of courts making use of the Constitution without usurping the NPC's constitutional authority.
18. Id. at 212-213.
19. Zhongguo Faxuehui Xianfaxue Yanjiuhui Zai Guiyang Chengli [The Constitutional Law Research Committee of the China Law Society is Established in Guiyang], 1 ZHONGGUO FAXUE [LEGAL SCI. IN P.R.C.] 57, 57 (1986).
20. Xu Weiyi, 1990 Report on Constitutional Law Scholarship, in RESEARCH REPORTS ON CONSTITUTIONAL DEVELOPMENT OF CHINA 611 (Hu Jinguang & Han Dayuan eds., 2004).
21. This consensus has held to the present day: Leading constitutional law scholar Zhang Qianfan, writing in 2003, described the current "consensus which has gradually emerged among legal scholars... [that] China has not just a need, but in fact an urgent imperative, to take the Constitution seriously as the fundamental legal document of the nation." For Zhang, taking the Constitution seriously would include the creation of a constitutional review mechanism. Zhang Qianfan, Renzhen Duidai Xianfa [Taking Constitutional Law Seriously], 15 PEKING UNIV. L.J. 560 (2003).
22. See, e.g., Hu Jinguang, Lun Xianfa Jiandu Zhidu [Regarding Constitutional Supervision Systems], 1 ZHONGGUO FAXUE [LEGAL SCI. IN P.R.C.], 72 (1985).
23. According to one widely used constitutional text: In the social and political life of our country, some incidents have emerged in which the question of whether certain normative legal documents violate the Constitution has arisen. But neither the NPC nor the Standing Committee have yet implemented their constitutional review process under the Constitution and the Legislative Law. Our country's constitutional review system still needs institutions to assist the NPC and the Standing Committee in fulfilling their constitutional review duties. These institutions can put forward conditions and principles necessary for constitutional review, and put forward more detailed regulations for the constitutional review process, the constitutional review method, constitutional review measures, and the effect of constitutional review, among other matters. In this way our constitutional review system will be much more operational.
24. XIANFA XUE YUANLI YU ANLI JIAOCHENG [TEXTBOOK ON CONSTITUTIONAL LAW PRINCIPLES AND CASES] 134 (Hu Jinguang ed., 2006).
25. CONSTITUTIONAL LAW, supra note 8, at 97.
26. Interview with Hu Jinguang, professor of Constitutional Law, People's University, in Beijing, China (Jan. 2008).
27. According to Hu, the term "judicialization" incorrectly implies full authority of the courts of the Constitution, to the exclusion of other institutional actors, including the NPC. Id.
28. WANG LEI, supra note 13, at 147.
29. Id. at 145-146.
30. Id. at 144.
31. In the Qi Yuling case, the SPC approved a plaintiff's cause of action in a tort case based on the plaintiff's claim that her constitutional right to education had been infringed. The SPC's approval seemed to suggest that the Chinese constitution is, in fact, enforceable in Chinese courts. For a fuller account of the Qi Yuling case, see infra.
32. ZHOU WEI, Xianfa Jiben Quanli Sifa Jiuji Yanjiu s RESEARCH ON THE JUDICIAL PROTECTION OF BASIC RIGHTS] 129 (2002).
33. CONSTITUTIONAL LAW, supra note 8, at 113.
34. ZHOU WEI, supra note 27, at 130.
35. Id. at 131.
36. Zhou approvingly cites the conclusion of another scholar that, "the supremacy of the constitution and the function of the people's courts means that people's courts do not have the authority to refuse to make use of the constitution; instead, both the constitution and laws approved by the legislature should be used by the people's courts." Id. at 130-131.
37. Id. at 134.
38. Zhang Qianfan, supra note 17, at 561.
39. WANG ZHENMIN, ZHONGGUO WEIXIAN SHENCHA ZHIDU [CHINA'S CONSTITUTIONAL REVIEW SYSTEM] 183 (2004).
40. CONSTITUTIONAL LAW, supra note 8, at 114.
41. The Shanghai court's verdict can be found in WANG LEI, supra note 13, at 1-3.
42. CONSTITUTIONAL LAW, supra note 8, at 114.
43. The exchange rate for US dollars and Chinese yuan in 1986 was roughly 1:3.7. The current exchange rate is 1:6.8.
44. The Labor Law and the Labor Contract Law, both of which would cover such situations today, did not come into force until 1995 and 2008, respectively.
45. CONSTITUTIONAL LAW, supra note 8, at 114.
46. The SPC declined to identify which laws and regulations the contract provision violated; scholars have been unable to identify any laws in force at that time that would prohibit such a contractual provision.
47. Criminal Law art. 238 (adopted at the Second Session of the Fifth National People's Congress on July 1, 1979; revised at the Fifth Session of the Eighth National People's Congress on March 14, 1997, and promulgated by Order No.83 of the President of the People's Republic of China on March 14, 1997). Prior to the 1997 revision, illegal search was covered by Article 144.
48. ZHOU WEI, supra note 27, at 153.
49. Such exposition is especially needed when, as in this case, it is unclear whether or not the right being claimed would actually apply to the facts of the case: It is unclear whether article 37 would mean that security guards should never be allowed to search an individual; regardless, such a conclusion is not immediately apparent on the basis of the text of article 37.
50. ZHOU WEI, supra note 27. at 179.
51. Tong Zhiwei, Xianfa sifa shiyong yanjiu zhong de jige wenti [Various Problems in Research on Usability of the Constitution], in 1 XIANFA Y ANJIU TUDIES ON CONSTITUTIONALISM] 271-284 (2002).
52. Liu Songshan, Weixian shencha re de liang sikao [Thoughts on Cooling Down the Constitutional Review Fever], 1 FAXUE [LEGAL STUDIES] 36 (2004).
53. Zhai Xiaobo, Daiyi jiguan zhishang de renmin xianzheng [People's Constitutional Governance Under the Parliamentary Supremacy System], 1 TSINGHUA L. REV. 35, 36 (2007).
54. Tong Zhiwei, supra at note 45, at 271-284.
55. See also Jiang Shigong, Xianfa sifahua de beilun [The Erroneous Theorizing of Judicialization of the Constitution], 2 ZHONGGUO KEXUE [P.R.C. SOC. SCI.], 18, 18-19 (2003).
56. Ji Weidong, Hexianxing shencha yu sifaquan de qianghua [Constitutional Review and the Strengthening of Judicial Power], 2 ZHONGGUO KEXUE [P.R.C. SOC. SCI.] 4 (2002).
57. Interview with Chinese academic, in Beijing (Jan. 2008) (interviewee spoke on condition of anonymity).
58. Jiang Ming'an, Jiang Ping, He Weifang, & Cai Dingjian, Roundtable Discussion on Judicialization of the Constitution, NANFANG ZHOUMO OUTHERN WEEKEND] (Aug. 13, 2001).
59. CONST. art. 33 (P.R.C.) reads as follows: Article 33. All persons holding the nationality of the People's Republic of China are citizens of the People's Republic of China. All citizens of the People's Republic of China are equal before the law. Every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law.
60. Interview (Jan. 2008) (interviewee spoke on condition of anonymity).
61. For a general overview of employment discrimination law in China, see Ronald C. Brown, China's Employment Discrimination Laws During Economic Transition, 19 COLUM. J. A SIAN L. 361 (2006).
62. Labor Law art. 12 (Adopted at the Eighth Meeting of the Standing Committee of the Eighth National People's Congress on July 5, 1994; promulgated by Order No. 28 of the President of the People's Republic of China on July 5, 1994. Effective as of Jan. 1, 1995).
63. See also id. art. 3 (requiring employers to treat employees equally).
64. For a brief account of hepatitis B discrimination in the public education sector, see Thomas E. Kellogg, Courageous Explorers? Education Litigation and Judicial Innovation in China, 20 HARV. HUM. RTS. J. 141, 185-187 (2007).
65. U.S. Centers for Disease Control and Prevention, Hepatitis B Information for the Public, http://www.cdc.gov/hepatitis/HepatitisB.htm (last visited Nov. 11, 2008).
66. Ye Jingyi & Shi Yuxiao, Discrimination on the Basis of Health and Disability: An Analysis of Chinese Employment Discrimination Law Through The Lens of Hepatitis B Discrimination Cases, in EMPLOYMENT DISCRIMINATION: INTERNATIONAL STANDARDS AND NATIONAL PRACTICE 319 (Lisa Reeve Sterns & Li WeiWei, eds., China Law Press 2006).
67. Wo shi yigan huanzhe, dan wo bushi yideng gongmin [Have Hepatitis B, but I Am Not a Second-class Citizen], NANFANG ZHOUMOU OUTHERN WEEKEND], Dec. 25, 2003.
68. Five Thousand Petitioners Demand Hewlett-Packard Take Action Against Hepatitis B Discrimination, CHINA LABOR BULLETIN, Sept. 3, 2007, available at http://www.china-labour.org.hk/en/node/49836.
69. Dismantling Discrimination, CHINA DAILY, Mar. 9, 2004. For an extended account of the case, see Daxue biyesheng heyi dongshaji? [Why Do College Graduates Kill?], NANFANG ZHOUMOU OUTHERN WEEKEND], Apr. 21, 2003.
70. Yigan qishi diyi an zhurengong de yinju shenghuo [The Secluded Life of the Central Protagonist in the First Hepatitis B Discrimination Case] YANCHENG EVENING NEWS, June 18, 2004 [hereinafter Secluded Life].
71. Shen Wulingfeng, Verdict Announced Today in China's First Hepatitis B Discrimination Case: Court Does Not Support Plaintiff's Request for Employment, CHINA NEWS NET, Apr. 2, 2004, available at http://news.sohu.com/2004/04/02/32/news219713299.shtml.
72. Zhou Mu, Hepatitis B Discrimination Case Begins: An Interview with Lawyer Zhou Wei, CHENGDU EVENING NEWS, Dec. 20, 2003.
73. ZHOU WEI, ZHONGGUO DE LAODONG JIUYE QISHI: FALU YU XIANSHI [EMPLOYMENT DISCRIMINATION IN CHINA: LEGISLATION AND REALITY] 1 (Law Press 2006).
74. Id. at 2-3. Just before Zhou decided to involve himself in the Zhang Xianzhu case, he had received a grant from the Chinese Social Sciences Foundation to continue his research on constitutional review mechanisms; he viewed the Zhang Xianzhu case as a key part of that research work.
75. Id. at 1-3. In a way, the government was funding research on systems, innovations, and litigation strategies that could undermine its own unchecked authority.
76. Du Wenjuan, Zhang Xianzhu Safeguards the Rights of 120 Million People RENMIN RIBAO [PEOPLE'S DAILY], May 13, 2005.
77. Court submission, Zhang Xianzhu v. Pers. Affairs Bureau of Wuhu, Nov. 18, 2003, reprinted in ZHOU WEI, supra note 65, at 330-331. The provincial regulations were geared toward excluding individuals who had active hepatitis, which can be more easily transmitted to others.
78. Id. at 332-333.
79. Id. at 338.
80. Zhang Xianzhu, in ZHOU WEI, supra note 65, at 355-356. The court did, however, order the defendant to pay 100 yuan in court costs.
81. The local personnel bureau appealed the decision, but the decision was upheld in a one-paragraph decision issued by the Wuhu City Intermediate People's Court on May 13, 2004. ZHOU WEI, supra note 65, at 384-385.
82. Zhang Xianzhu, in ZHOU WEI, supra note 65, at 354.
83. Interview (Sept. 17, 2007) (interviewee spoke on condition of anonymity).
84. It is possible that the risk created by such a decision would have been somewhat less than the pressure created in the small number of cases - including the famous "seed case" - in which local courts declared invalid laws created by local people's congresses that conflict with national law. In the Zhang Xianzhu case, the normative document in question was an administrative regulation, one that, presumably, the local government and the local people's congress had little interest in protecting. Whether or not there would be any difference between the political furor generated by the seed case and the circumstances presented by the Zhang case is, of course, an open question, given that no court has yet openly invalidated an administrative regulation due to conflicts with constitutional norms. For more on the seed case, see Jim Yardley, A Judge Tests China's Courts, Making History, N.Y. TIMES, Nov. 28, 2005.
85. Zhang himself told a journalist after the verdict that the fi nal outcome of the case was less important than the attention that his lawsuit brought to the issue. Speaking to a reporter from the Yangcheng Evening News, Zhang said: "Actually, even before the verdict was announced, I already felt that the final result of the lawsuit was unimportant. The case had already gotten the attention of NPC representatives, the media, medical doctors, and various segments of society, and the country had already begun to take this problem seriously." Secluded Life, supra note 62.
86. China Personnel News, http://www.rensb.com/showarticle.php?articleID=343 (last visited Nov. 11, 2008).
87. Applause for the Court Accepting the "Hepatitis B Discrimination Case," SOUTHERN METROPOLITAN DAILY (Guangzhou).
88. "The First Hepatitis B Case "Continues: Local Government Bureaus Amend Their Regulations, P.R.C. YOUTH DAILY, Apr. 5, 2004.
89. Law on Prevention and Control of Infectious Diseases art. 16 (adopted at the 6th Meeting of the Standing Committee of the Seventh National People's Congress on Feb. 21, 1989 (P.R.C.). The Law was revised on August 28, 2004.
90. Chang Ailing, Chinese Government Adopting Measures to Protect the Rights and Interests of Hepatitis B Pathogen Carriers, XINHUA, Aug. 10, 2004.
91. National Standards for Medical Exams for Public Servants (promulgated jointly by the Ministry of Health and the Ministry of Pers., Jan. 20, 2005) (P.R.C.). Article 7 reads as follows: Various types of serious, chronic cases of hepatitis, such cases are not standard. For hepatitis B carriers, once they have been tested to eliminate the possibility of active hepatitis, then they are standard.
92. Casting Aside "Hepatitis Discrimination "Reflects Respect for Popular Will, XIN JING BAO [BEIJING NEWS], Aug. 2, 2004, available at http://tech.163.com/04/0802/10/0SP95LOG0009153U.html. According to the Beijing News's analysis, the new standards reflected government responsiveness to the will of the people, which was itself reflected in the public's response to the Zhang Xianzhu case.
93. Id.
94. Employment Promotion Law (issued by the National People's Congress Standing Committee, Aug. 30, 2007, effective Jan. 1, 2008) (P.R.C.).
95. Public Responds to Draft Employment Law, XINHUA, Apr. 5, 2007.
96. Zhou Wei & Li Cheng, The Constitution in Court: Equality, Freedom, and Anti-Discrimination Public Interest Litigation (unpublished manuscript, on file with the author).
97. For an analysis of constitutional petition mechanisms that links progress on constitutional development to the party-state's search for legitimacy, see Keith J. Hand, Citizens Engage the Constitution: The Sun Zhigang Incident and Constitutional Review Proposals in the People's Republic of China, in CONSTITUTIONALISM AND JUDICIAL POWER IN CHINA (Stephanie Balme & Michael Dowdle, eds., Palgrave Macmillan 2008).
98. Thomas E. Kellogg & Keith Hand, NPCSC: The Vanguard of China's Constitution?, P.R.C. BRIEF, Jan. 17, 2008, at 4, available at http://www.jamestown.org/terrorism/news/uploads/cb_008_002e.pdf.
99. As this article was going to press, the Supreme People's Court formally withdrew its interpretation in the Qi Yuling case. The decision to do so was viewed by some observers as a signal that meaningful constitutional reform was not on the judiciary's - or the government's - agenda. If this is so, bottom-up reform strategies, including those that rely on increased public rights consciousness, could become all the more crucial.