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2 China crawls slowly towards
judicial reform By Thomas E
Kellogg and Keith Hand
The opening line
was short but dramatic: "With Rule of Law Day fast
approaching, we renew our call: abolish the
reeducation through labor system." So wrote a
group of nearly 70 prominent scholars, lawyers,
activists and public intellectuals in a
constitutional review proposal issued in November
2007. Addressed to the Standing Committee of the
National People's Congress (NPCSC), the proposal
laid out a number of reasons why - in the view of
its signatories - the reeducation through labor
system (laodong jiaoyang) should be
scrapped [1].
The proposal managed to
attract some media attention within
China. This is not
surprising, given that the list of signatories is
comprised of a who's who of liberal intellectuals
and progressive legal activists in China,
including prominent economist Mao Yushi, outspoken
legal scholar He Weifang and public interest
lawyer Li Fangping, among many others. Both
Southern Weekend and the Justice Net, a website
run by the Supreme People's Procuratorate,
reported the details of the proposal in a
generally positive light. Yet the NPCSC has
neither responded to the proposal nor acknowledged
its receipt.
The proposal provided an
important summary of what - in the view of its
signatories - is wrong with the reeducation
through labor system. Yet what is more important
about the proposal is what is left largely
unwritten: in addressing their proposal to the NPC
Standing Committee, the authors call on this
legislative institution to exercise its authority
to "supervise" constitutional enforcement. Unlike
most legal systems, the Chinese legal system vests
the power of constitutional review not in courts,
but in the legislature. To date, however, there is
no public evidence that the NPCSC has exercised
this power in any systematic or significant way.
Signs of nascent
constitutionalism There have been some
mixed signs over the last decade that Beijing was
moving in the direction of making some form of
constitutional review a reality. In 2000, the NPC
adopted the PRC Legislation Law, which provided
citizens the specific right to "propose" that the
Standing Committee review administrative
regulations and rules that are deemed to conflict
with the constitution or national law.
In
2001, the Supreme People's Court (SPC) indicated
in the Qi Yuling case that the constitution could
be directly applied in ordinary civil litigation.
In this case, the SPC authorized the Shandong
province High Court to apply a constitutional
provision on the right to education in
adjudicating a civil lawsuit between two private
parties. In Qi Yuling v Chen Xiaoqi et al The
Supreme People's Court of China stated that by
infringing on Qi Yuling's right to select and use
her own name, Chen Xiaoqi et al violated Qi
Yuling's fundamental constitutional right to
education and caused actual damages. The court
decided that Chen Xiaoqi et al should bear
corresponding civil liability.
The case
marked a historic first: despite past statements
by the Court to the contrary, the SPC was
signaling that it would exercise some authority
over the enforcement of constitutional norms.
Though the court was promptly slapped on the wrist
for its actions, scholars and lawyers nonetheless
viewed the move as the first step in a process of
bringing meaningful judicial review to China. The
case also triggered an explosion of scholarly
commentary on how to construct the "right"
constitutional mechanism for China.
The
naming of moderate reformists to key posts -
including Xiao Yang's 1998 appointment to head the
SPC and the 2002 appointment of prominent scholar
and rights theorist Xia Yong to lead the
influential Institute of Law at the Chinese
Academy of Social Sciences (CASS) - fed positive
perceptions on the part of scholars of the
government's constitutionalist aims [2]. During
his tenure, Xiao Yang dramatically increased the
SPC's profile, bringing a level of prestige to the
institution that it had previously lacked. Xiao
also accelerated a number of system-wide judicial
reforms meant to improve the quality of justice
meted out by courts nationwide [3].
The
rhetoric of senior leaders - always a key signal
of which way the wind is blowing in China - also
seemed to indicate that change might be on the
horizon. In 2002, Hu Jintao gave a speech
commemorating the twentieth anniversary of the
creation of the 1982 constitution. Although Hu
made the customary references to socialist
legality, he also emphasized the importance of
enhancing the "authoritativeness" of the
constitution, and noted that China's "masses"
should view the constitution as a "legal weapon
for safeguarding citizen rights".
SPC
president Xiao Yang echoed this call, stating that
only by improving mechanisms for constitutional
supervision would the constitution become a
"strong weapon for citizens to protect their own
rights and freedoms". Such comments on
constitutionalism, together with the new
leadership's emphasis on openness in dealing with
the 2003 SARS crisis, led some in China to believe
that meaningful progress on constitutional
development might be possible [4].
Some
Chinese scholars and citizens read the seemingly
liberal atmosphere as a call to take action on
their own to advance the cause of constitutional
reform. In May 2003, shortly after a young man
named Sun Zhigang died in police custody, three
legal scholars filed a proposal with the NPCSC
challenging the administrative detention system -
known as custody and repatriation - under which
Sun had been detained.
Like the
reeducation through labor proposal filed late last
year, this legal document argued that the system
violated China's constitution and the Legislation
Law. Shortly afterward, the government scrapped
custody and repatriation. Although officials
avoided discussion of any constitutional
connection, the timing of the government's
response was interpreted by many as evidence that
citizen constitutional arguments had helped
accelerate an important reform [5].
In the
wake of this apparent success, China has witnessed
a surge of grassroots constitutional activism.
Over the past four years, citizens have filed at
least 40 proposals for constitutional and
legislative review with the NPCSC [6]. Citizens
have also raised constitutional arguments in
China's courts. Domestic media reports on these
challenges have raised public consciousness of the
Constitution. Moreover, in some cases, the claims
appear to have generated or reinforced public
pressure for modest legal reforms, such as the
revision of employment regulations that
discriminated against carriers of the Hepatitis B
virus [7].
The government has also enacted
limited institutional reforms. In 2004, the NPC
Standing Committee established a specific office
for reviewing regulations for consistency in
national law, a move viewed by some as the first
step toward a more concrete constitutional review
mechanism. In late 2005, the NPCSC announced the
adoption of new procedures for handling citizen
constitutional and legislative review proposals
filed under the Legislation Law.
In both
cases, official media tied reforms in part to
growing citizen demands. Some scholars have viewed
the moves by the NPCSC as an attempted response
from reformists within the NPCSC bureaucracy to
the experimentation with constitutionalism by the
judiciary [8]. In this case, this nascent
institutional competition- if allowed to play out-
could have a positive impact on constitutional
development.
Finally, despite the backlash
against the 2001 Qi Yuling decision, Chinese
courts have issued a small handful of innovative
decisions and, on occasion, have made reference to
constitutional norms in their verdicts. The
practice of Chinese courts making reference to
constitutional provisions in their verdicts is
referred to within China as "judicialization of
the constitution" (xianfa sifahua), and is
regarded by some Chinese scholars as the best hope
for continued constitutional development [9].
In 2004, for example, the Jiangsu province
High Court applied due process requirements not
found in the law itself to a government agency. As
a result of the agency's failure to give notice,
the plaintiff in the case had been effectively
denied the right to participate in an agency
review that implicated his rights and interests
[10]. The surprisingly little-noted case may be
the first in the history of the People's Republic
in which the court used the phrase "due process"
(zhengdang chengxu) in a verdict that
relied, at least in part, on due process
principles rather than merely resting on relevant
legislation and regulations.
The mood
in 2008 Despite these positive signs,
however, the general mood among intellectuals, one
of qualified optimism as late as 2004, has evolved
into pessimism over the government's apparent
unwillingness to take further steps to make
constitutional review a reality. Beijing has yet
to issue any formal, public rulings in response to
these constitutional challenges. More importantly,
it has not yet established a transparent and
effective legal process for adjudicating citizen
constitutional claims. At present, few if any
observers within China believe that significant
process on the establishment of a robust
constitutional review mechanism is likely in the
near future.
Leadership statements
commemorating the 25th anniversary of the PRC
constitution in late 2007 only seemed to reinforce
this pessimistic outlook. In October, Hu Jintao
did made a general reference to strengthening
"implementation of the Constitution and laws" in
his report to the 17th Party Congress. While
noting the importance of implementing the
constitution and improving methods of
constitutional review, however, the commemoration
statements lacked any new specifics on
constitutional enforcement mechanisms.
Language emphasizing the constitution as a
"citizen weapon" for rights protection, a notable
feature of earlier official discourse, was
dropped. In contrast, one of the commemoration
statements indicated that - when "citizen rights"
are violated - remedial measures are provided
under the State Compensation Law and the
Administrative Litigation Law, two statutes which,
while important, have narrower scopes than the
constitution.
For the time being, then,
China's leaders have calculated that the risks of
instituting a public, transparent and responsive
process for adjudicating constitutional claims
outweigh the short-term political costs of the gap
between its constitutional implementation rhetoric
and practice on constitutional review. To
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