Page 2 of 2 China crawls slowly towards judicial
reform By Thomas E Kellogg and
Keith Hand
handle such tensions, it is
likely to maintain a cautious but multifaceted
approach.
First, continue to profess
rhetorical commitment to constitutionalism while
calibrating such rhetoric to avoid encouraging
grassroots activism. Second, take well-controlled
steps like the adoption of the 2005 NPCSC
procedures to create the perception of some
minimal progress on constitutional review. Third,
respond indirectly with modest legal and policy
reforms to a few constitutional claims that
attract public interest and do not
directly challenge the
pillars of party or government power, such as
those involving discriminatory practices. Fourth,
restrict media discussion of the most sensitive
constitutional claims or institutional reforms.
Recent constitutional review proposals challenging
China's criminal provisions on subversion and
regulations on Internet news content, for example,
gained no traction in Chinese media.
The
news in recent years has not been all bad:
constitutional law scholarship in China, once the
exclusive haven of Marxist theoreticians and
somewhat of an intellectual backwater, has now
come alive, and its standing within the legal
academy has increased dramatically. Not all recent
constitutional law scholarship, however, is
progressive or along the lines of the comparative
model.
Many scholars point to the
increasingly influential "new left", which, unlike
the traditional Marxists of the "old left", have
attempted to craft legal and constitutional
theories that draw on a mix of sources, including
Marxism, a revised reading of indigenous
philosophies such as Confucianism, and Western
theory, often in support of the status quo.
Scholars who produce less theoretical
works that draw more heavily on Western
comparative theory and practice but still support
the government line are usually referred to as
"guanfang xuezhe", which translates loosely
as pro-government scholars [11]. Whereas in the
1980s, only a handful of texts by Chinese scholars
elucidated the virtues of constitutional rights
protection by the courts [12], now the shelves of
China's bookstores groan with constitutional law
treatises and texts. References to Marxist legal
theory, once de rigeur in all legal tomes, now
play a minimal role in the constitutional law
textbooks used in China’s top law schools.
Instead, those textbooks increasingly emphasize
the theory and practice of modern constitutional
democracies [13].
As a result, the
knowledge base of Chinese scholars - and today's
crop of young law graduates - is dramatically
different than it was a generation ago. "In 1982,
we didn't know a lot about judicial review," one
prominent Beijing-based legal scholar remarked in
a recent interview. "Today even students know
about Marbury v Madison," one of the cornerstones
of US constitutional law [14].
As the
recent reeducation through labor proposal
suggests, legal reformers may have recognized that
even as the prospects for breathing life into
constitutional review as a legal process remain
limited, such citizen actions may have positive
long-term impacts in the realm of public opinion.
By making use of available space for
constitutional discourse and existing but
incomplete legal mechanisms for constitutional
review, reformers keep a public spotlight on the
deficiencies of the system and maintain pressure
for institutional progress. Perhaps more
importantly, to the extent these claims attract
the attention of domestic media, they help to
translate the constitutional concepts that have
taken hold in academic circles and bring them to
the attention of a mass audience. In so doing,
legal reformers are slowly raising public
consciousness of constitutional issues and,
perhaps, generating greater public consensus for
meaningful constitutional review in China.
Notes 1. For the text of
the proposal, see the Lawyer Watch website. 2. Author
interview, Beijing, October 2007. 3. Fu
Hualing and Richard Cullen, "From Mediatory to
Adjudicatory Justice: the Limits of Civil Justice
Reform in China," forthcoming. On file with
authors. 4. Cheng Li, "Hu's Policy Shift and
the Tuanpai's Coming-of-Age," China Leadership
Monitor, no 15, Summer 2005. 5. See generally,
Cai Dingjian, "The Development of
Constitutionalism in the Transition of Chinese
Society," Columbia Journal of Asian Law, Vol 19
(Spring/Fall, 2005). For a extended discussion of
Chinese reactions to the Sun Zhigang case, see
Keith J Hand, Using Law For a Righteous Purpose:
The Sun Zhigang Incident and Evolving Forms of
Citizen Action in the People's Republic of China,
Columbia Journal of Transnational Law, Vol 45
(2006). 6. The NPCSC does not publicly disclose
the number or content of constitutional and
legislative review proposals filed under the
Legislation Law. The authors have collected 40
such proposals that have been made publicly
available through other channels. 7. See
generally, Chen Chao, "Public Opinion Defeats HBV
Discrimination," China Internet Information
Center, September 23, 2004. In May 2007, the
Ministry of Labor and Social Security issued a
circular that prohibited employers from
discriminating against non-infectious HBV
carriers. See "Guanyu weihu yigan biaomian
kangyuan xiedaizhe jiuye quanli de yijian"
[Opinion on Safeguarding the Employment Rights of
Hepatitis B Carriers], issued May 18, 2007. 8.
Author interview, Beijing, October 2007. 9. See
Wang Lei, "Xianfa Sifahua" [Judicialization of the
Constitution], China University of Politics and
Law Press, 2000. 10. Zhang Chengyin v Xuzhou
City People's Government Building Registration
Bureau Administrative Reconsideration Decision,
2004. Published in Zuigao Renmin Fayuan Gongbao
(Gazette of the Supreme People's Court), vol 3,
2005. For a detailed and fascinating account of
this case and other related due process cases, see
He Haibo, "The First Rays of Dawn of the Due
Process Principle," forthcoming. On file with
authors. 11. Author interview, Beijing,
October 2007. 12. A particularly influential
early text is Gong Xiangrui, "Bijiao Xianfa yu
Xingzhengfa" [Comparative Constitutional and
Administrative Law], Law Press, 1985. 13. See,
eg, Hu Jiguang, ed, "Xianfa Xue Yuanli yu Anlie
Jiaocheng" [Constitutional Law Principles and Case
Textbook], China People's University Press, 2006;
Zhang Qianfan, ed, Xianfa Xue [Constitutional
Law], Law Press, 2004. 14. Author interview,
Beijing, October 2007.
Thomas E
Kellogg is a senior fellow at the China Law
Center of Yale Law School and a lecturer in law at
Yale Law School. Keith Hand is a senior
fellow at the China Law Center of Yale Law
School.
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