Cai Dingjian, The Development of Constitutionalism in the Transition of Chinese Society ( ) 19 Colum. J. Asian L. 1, 1 29.

Transcription

1 Weak Courts, Weak Rights: Assessing the Realisation of Constitutional Rights in PRC Courts Guobin Zhu* It is no use giving citizens rights if they cannot, when necessary, have access to the courts to enforce those rights The Rt. Hon. Lord Woolf of Barnes Like many other constitutions, the PRC Constitution enumerates a list of fundamental rights that citizens can enjoy. The 2004 Constitutional Amendment adds the phrase The state respects and preserves human rights to Art 33 and marks a new page in rights protection in China. However, the violation of citizens constitutional rights and freedoms by the PRC government and its offi cials and the unavailability of judicial remedies to curb this phenomenon have long been criticised inside China as well as outside. As a result, the realisation and guarantee of rights and freedom is far from satisfactory. Firstly, focusing on the implementation of constitutional rights clauses, this article analyses why the current constitutional legal framework discourages direct application of the Constitution by/in the courts. Secondly, it examines the attempts made by the PRC courts in the recent past, and discusses their signifi cance in the protection of such rights. Thirdly, it further argues that although there can be no foreseeable substantial institutional breakthroughs in the current context of law and politics, the courts as positive enforcer of the Constitution can still play a limited but important and irreplaceable role in realising constitutional rights. To achieve it, a dualtrack approach that involves both the NPCSC and the courts is promoted. * Associate Professor, PhD & Habilitation; School of Law, City University of Hong Kong. This article was fi rst presented at the 4th Asian Constitutional Law Forum held on December 2011 at the University of Hong Kong. I am grateful to those who kindly provided their comments on the drafts during the conference and afterwards, including Christina Murray, Jack Burke, Mark Kielsgard, Zhang Xiang, Wang Kai, Xie Libing and Ren Xirong for their constructive comments on the drafts. I also wish to thank Ms Lai Chu Lau, Law Librarian of City University of Hong Kong, and her assistant Miss Rowena Cheung, for their tireless assistance. Finally, my special thanks go to anonymous reviewers of the submission. The Rt. Hon. Lord Woolf of Barnes, Preface to Christopher Forsyth et al. (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford and New York: OUP, 2010) xxxviii.

2 714 Guobin Zhu (2013) HKLJ Introduction The role of the court, the rights in the courtroom and constitutionalism in the transitional Chinese society have been central focal points of scholarship since recently. Several years ago, Cai Dingjian (2005) described how the development of constitutionalism could be achieved in the People s Republic of China, 1 Liebman (2007) dealt with China s courts restricted reform, 2 and Peerenboom (2008) discussed more law, less courts and dejudicialisation in China. 3 Recently both Zhang Qianfan (2010) 4 and Chen Jianfu (2011) 5 critically treated the issue of popular constitutionalism, and Kellogg (2011) systematically discussed the constitution in China s courtroom, 6 and Zhu Guobin (2010) specifi cally assessed the system of constitutional review and the diffi culty in realising it. 7 It is worth noting Backer s (2010) proposal to institute a constitutional court within the Chinese Communist Party (CCP) 8 and Chen Xiaoping s earlier observation (2006) of the diffi culty for rights advocacy or cause lawyering. 9 Together they have greatly contributed to the scholarship on the subject matters. Different from the above publications, the focus of this article is specifi cally placed on the realisation of constitutional rights in and by the courts of various levels, particularly local courts, in China. Like many other constitutions, as we can observe, the current Chinese Constitution 1982 enumerates a list of fundamental rights that citizens can enjoy. Chapter II of the Constitution, entitled The Fundamental Rights 1 Cai Dingjian, The Development of Constitutionalism in the Transition of Chinese Society ( ) 19 Colum. J. Asian L. 1, Benjamin L. Liebman, China s Courts: Restricted Reform ( ) 21 Colum. J. Asian L. 1, Randall Peerenboom, More Law, Less Courts: Legalized Governance Judicialization and Dejudicialization in China (8 September 2008). La Trobe Law School Legal Studies Research Paper No. 2008/10. available at or ssrn (visited 12 June 2013). 4 Zhang Jianfan, A Constitution without Constitutionalism? The Paths of Constitutional Development in China (2010) 8 Int. J Constitutional Law 4, Chen Jianfu, Constitutional Judicialization and Popular Constitutionalism in China Are We There Yet? in Yu Guanghua (ed), The Development of the Chinese Legal System: Change and Challenges (London and New York: Routledge, 2011) Thomas E. Kellogg, The Constitution in the Courtroom: Constitutional Development and Civil Litigation in China in Margaret YK Woo & Mary E Gallagher (eds), Chinese Justice: Civil Dispute Resolution in Contemporary China (New York: CUP, 2011) Zhu Guobin, Constitutional Review in China: An Unaccomplished Project or a Mirage? ( ) 43 Suffolk U. L. Rev Larry Catá Backer, A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP ( ) 43 Suffolk U. L. Rev Chen Xiaoping, The Diffi cult Road for Rights Advocacy: An Unpredictable Future for the Development of the Rule of Law in China ( ) 16 Transnat l L. & Contemp. Probs

3 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 715 and Duties of Citizens, looks like a Bill of Rights. The rights incorporated in the Constitution range from such civil and political rights as right to equality (Art 33), right to vote and to stand for election (Art 34), right to freedom of expression (Art 35), freedom of religious belief (Art 36), right of the person (Art 37), right to personal dignity (Art 38), inviolability of residence (Art 39), freedom and privacy of correspondence (Art 40), and right to criticise and make suggestions regarding any state organ and civil servants (Art 41), to social, economic and cultural rights including right (and obligation) to work (Art 42), right to rest (Art 43), right to retirement (Art 44), right to material assistance (Art 45), right to receive education (Art 46), and freedom to engage in scientific research, literary and artistic creation and other cultural pursuits (Art 47). The 2004 Constitutional Amendment adds the phrase The state respects and preserves human rights to Art 33 and marks a new page in rights protection in China. However, observing from outside, the image of the Chinese government has been a rights infringer. Indeed the violation of citizens constitutional rights and freedoms by the government and its offi cials and the unavailability of suffi cient judicial remedies have long been seriously criticised inside China as well as outside. It is commonly accepted that the realisation and guarantee of rights and freedoms is far from being satisfactory. Among many reasons that could be used to explain this defect, including belated legislation, poor implementation of law, defi ance of law by state organs and civil servants, and ever increasing institutional corruption, the lack of effective implementation of rights and freedoms by and in the courts is probably the central one. The thesis of taking the Constitution away from the courts 10 for the purpose of fi ghting judicial supremacy has certainly no correlation with the Chinese actuality and the counter-majoritarian diffi culty (maybe the best known problem in American constitutional theory) 11 is not an appropriate doctrine to describe the Chinese situation, simply because the Chinese courts have been theoretically, and practically (since 2008), prohibited from applying the Constitution in the courts. To most of the scholars of law and to the state institutions, the Chinese constitution has, or should have, no direct effect in judicial proceedings; in other word, the courts cannot invoke the 10 Mark Tushnet, Taking the Constitution away from the Courts (Princeton, New Jersey: Princeton University Press, 1999). 11 The counter-majoritarian diffi culty basically states a problem pointing at the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to majority will as expressed by representative institutions. The phrase is attributed to Alexander Bickel who is said to have introduced it in his remarkable work The Least Dangerous Branch (Indianapolis: Bobbs-Merrill Educational Publishing, 1962). A Chinese translation was published by Peking University Press, Peking, 2007.

4 716 Guobin Zhu (2013) HKLJ constitutional clauses in adjudicating cases, and the parties concerned cannot directly claim their constitutional rights in the courts. Interestingly, since the late 1980s, the Chinese courts (primarily the local courts), occasionally received and adjudicated cases based on the consideration of constitutional rights provisions. Entering the new millennium, with the gradual awakening of the sense of rights and the increasing awareness of the significance of rights protection among the general public, particularly along with the growth of rights advocacy and emergence of cause lawyering, 12 citizens have been educated to make use of the constitution to defend and claim their constitutional rights in the courts. The appeal for better and full realisation of the rights in the courts also derives from the new generation of judiciary, and most of the judges of this category have received modern and professional legal education of a Western variety. Nowadays, it is no exaggeration to state that the majority of citizens have staked a claim for stronger rights, in contrast to the dominant ideology which still favours weaker courts and continues to defy separation of powers. 13 After the ruling on the fate of Qi Yuling case in December 2008 which declared the death of it by the Supreme People s Court (SPC) itself, 14 the PRC courts were not provided with any leeway to enforce such rights. The dispute over the effect of the Constitution is still present and has created a division among the scholars of constitutional law. 12 In Chen Xiaoping s article, the term cause lawyering refers extensively to all activities undertaken by both lawyers and non-lawyers who claim rights and seek justice in China. He notes that in the United States, some scholars use the term public interest law and cause lawyering interchangeably. Note 9 above, p 229, 230. Cause lawyering partly goes along with the movement of popular constitutionalism. Zhang Jianfan has dealt with the issue with instances in his article. Note 4 above, pp This is represented by a speech of Seven Establishments and Five Non-applications, delivered by Wu Bangguo, then Chairman of the National People s Congress Standing Committee in March 2011, to describe the Chinese legal system and the political system with Chinese characteristics. Wu pronounced that: based on the actual situations in China, we solemnly state that we will not practice multi-party political alternation, diversity of guiding ideas, separation of powers and bi-cameralism, federalism and privatization. It is believed to be the important experiences gained from over 60 years development and the consensus, and the fundamental difference between the political civilization with Chinese characteristics and other political civilizations. See Zhang Liang, Wu Bangguo using Seven Establishments and Five Non-applications to describe the political civilization with Chinese characteristics, available at and cn/npc/dbdhhy/11_4/ /12/content_ htm (visited 12 June 2013). 14 It was marked by the Notice of the Supreme People s Court published on 18 December 2008, in which the previous Reply regarding Qi Yuling, a kind of judicial interpretation, issued by the Supreme People s Court, was considered no longer applicable and thus abolished. After the publication of the Notice, Fa Xue (Legal Science), a journal published by East China University of Politics and Law, organised a series of articles commenting its theoretical and practical implications, cf (2009) 3 & 4 Fa Xue. Many Chinese leading scholars joined the discussion. About Qi Yuling and its relevance to constitutional review system in China, cf Zhu Guobin (n 7 above).

5 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 717 Focusing on the implementation of constitutional rights clauses, this article fi rstly analyses why the current constitutional regime discourages direct application of the Constitution by the courts, and how the courts are obliged to dance in shackles on the note composed by the Constitution itself as well as by the mainstream (and offi cial) theory. Secondly, it examines the attempts made by the courts in the recent past to enforce constitutional rights, and discusses this in the prism of rights protection. 15 Thirdly, it further expounds that although there can be no substantial institutional breakthroughs in a foreseeable future in the current context of law and politics, the courts as positive enforcer of the Constitution, can still play an active and irreplaceable role in realising constitutional rights in China. In the end, taking into account the feasibility of all possible approaches Western/liberal, moderate/pragmatist, or conservative, the article promotes the dual-track approach that involves both the NPCSC and the Court and which appears to the author to be the most feasible one. Judicial Application of the Constitution: the Courts are Dancing in shackles Whether the courts can directly apply the Constitution in adjudication cases concerning fundamental rights of citizens is fi rst of all a question of theoretical inquiry. In the Chinese context, the application of the constitution (xianfa shiyong) means the enforcement of the constitution by the competent state organs in accordance with the procedure prescribed by law, aiming at handling unconstitutional acts. The competent state organs refer to constitutional council, constitutional court or legislature, excluding common courts. 16 Some others believe that, broadly speaking, the application of the constitution should include the observation of 15 It should be noted that in the course of this analysis, the article mainly relies on the instances and court cases publicly released in these works. These include: Wang Lei, Xuanze Xianfa (Choosing Constitution) (Peking: Peking University Press, 2003); Wang Yu (ed), Zhongguo Xianfa Sifahua: Anli Pingxi (Constitutional Judicialization in China: Comments and Analysis of Cases) (Peking: Peking University Press, 2005); Zhou Wei (eds), Fating Shang de Xianfa: Pingdeng, Ziyou yu Fanqishi de Gongyi Susong (Constitution in the Courtroom: Public Interest Lawsuits regarding Equality, Freedom and Anti-discrimination) (Jinan: Shandong People s Press, 2011); Hu Jinguang (ed), Zhongguo Shida Xianfa Shili Pingxi (Comments and Analysis of Ten Most Important Constitutional Instances and Cases of China) (2 volumes published by Peking: Renmin University Press, 2008 & 2009, and 4 volumes, Peking: Law Press, 2009, 2010, 2011 & 2012); and Han Dayuan (ed), Zhongguo Xianfa Shili Yanjiu (Study of Constitutional Instances and Cases of China) (5 volumes, Peking: Law Press, 2005, 2008, 2009, Jan 2010 & Dec 2010). 16 Li Long, Xianfa Jichu Lilun (Fundamental Theory of Constitution) (Wuhan: Wuhan University Press, 1990)

6 718 Guobin Zhu (2013) HKLJ the constitution by citizens and the state organs, and the application by judicial institutions; and narrowly speaking, it only refers to the application in judicial proceedings. 17 A scholar divides the application of the constitution into two parts: (i) review and decision of unconstitutional cases, ie, constitutional supervision and constitutional review, and (ii) adjudication of concrete cases in the courts in accordance with the constitution. 18 Chinese scholars of constitutional law are indeed divided over the issue of the application of constitution by courts. Basically, there are three leading opinions: (i) the negative thesis: the constitution should not constitute the direct source according to which a judgment is to be made by the courts; 19 (ii) the positive thesis: the constitution is a law and shall thus be implemented in trial practice; 20 (iii) the compromising thesis: the courts in China cannot apply the constitution when adjudicating criminal cases, but can do it in a restrained manner in civil and administrative cases. 21 Based on the observations, the negative and positive theses are well-matched, and one side is not able to convince and override another. In addition to these thoughts, there may be a fourth one, which can be described as middle way approach, asserting that the breakthrough of the application of constitution can be achieved in the sphere of private law. 22 As one scholar has interestingly observed, there has been no such a general perception or consensus so far in this regard Li Buyun, Xianfa Bijiao Yanjiu (Comparative Study of Constitution) (Peking: Law Press, 1998) Fei Shancheng, On the Applicability of Constitution (1996) 3 Faxuejia (Jurist Review) Hu Jingguang, Exploration on the Judicial Applicability of the Chinese Constitution (1997) 5 Zhongguo Renmin daxue Xuebao (Journal of Renmin University of China). 20 Wang Zhenmin, Whether the Chinese Constitution Can be Brought in Lawsuits (1995) 5 Fashang Yanjiu (Study of Law and Commerce) Xu Chongde, an authority of constitutional law, highly praised the position taken by the SPC in Qi Yuling. In support of the judicial application of the Constitution, he wrote that: The Reply [of the SPC in 2001] has made a positive step toward changing the inertia of keeping the Constitution out of the courts that started since the founding of the PRC. It ensures the availability of judicial remedy to the citizens whose fundamental rights such as right to education have been infringed upon, and it has preserved the dignity of the Constitution. Xu Chongde, The Enlightenment of Qi Yuling on the Improvement of the Mechanisms of Constitutional Implementation Renmin Fayuan Bao (People s Courts Daily) 17 September Wang Shuwen, On the Supreme Effect of the Constitution (1981) 1 Faxue Yanjiu (Journal of Chinese Law); and Zhou Wei, Study of the Issues relating to the Application of Constitution in Adjudicative Practice (2000) 4 Neimenggu Shehui Kexue (Journal of Social Sciences of Inner Mongolia) Cai Dingjian, The Private Law Approach Can Lead to the Implementation of the Constitution in China (2004) 2 Zhongguo Shehui Kexue (China Social Sciences). 23 Ji Ying, An Analysis of the Legitimacy of Constitutional Application (2009) 2 Ningxia Dangxiao Xuebao (Journal of Ningxia Communist Party School) 55.

7 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 719 Why cannot the Courts Adjudicate Cases according to the Constitution? For the proponents of the negative thesis, the courts cannot apply the Constitution since the nature and legal status of the Constitution prevent this from happening. First of all, it is generally agreed that the Constitution is the mother law. Adopting this view, its role is to guide all law-making activities and its implementation is to be realised by adopting other national laws by the National People s Congress (the NPC) and its Standing Committee (the NPCSC). It is also a political law, in other words, a political programme that all states organs, social institutions and citizens shall observe. Indeed, the Chinese constitution has incorporated the guiding political lines and the predominant ideology that are proclaimed and amended periodically by the CCP. The Constitution is defi nitely not an ordinary law that can be compared with other laws made by the legislature. In the hierarchy of law, the Constitution enjoys the highest status above all other laws and regulations. Tong Zhiwei puts forward a powerful opinion to support the position that the courts should not apply the Constitution directly in judicial cases. In his article, The application of the Constitution should follow the path stipulated by the Constitution itself, he opines that the application of the constitution in China should mainly be carried out by means of legislation and by the institution of a supervisory system, namely, the supervision of the constitutional implementation by the highest organ of state power, ie, the NPC and the NPCSC. Tong argues that the way of judicial application of the Constitution is not in line with the current Constitution and simply would not work. There has never been the case that a specifi cally stipulated provision in the Constitution has been used and applied as the legal basis of a judicial decision by the courts. If people still insist that there are actually cases of constitutional judicialization in China, these cases, in his view, should be regarded as the evidence of violation of the Constitution and law undertaken by individual courts, and should not be followed by the others. Tong further holds that encouraging the judicial application of constitution or constitutional judicialization provides no assistance in promoting the application of the Constitution. Further, it hinders the perfection of the system of constitutional application and the improvement of the effi ciency of constitutional application in China. Against this backdrop, Tong believes that the law in Art 126 of the Constitution (which reads that The people s courts exercise judicial power independently, in accordance with the provisions of law ), and in Art 131 ( The people s procuratorates exercise procuratorial power independently, in accordance with the provisions of law ) should

8 720 Guobin Zhu (2013) HKLJ exclude the Constitution. This confi rms his thesis that the courts cannot and should not directly apply constitutional provisions in adjudicating cases in front of them. 24 However, Tong does not expressly object to the courts citing the constitutional provisions in judicial decisions. He stresses that there is no necessary relationship between citing a constitutional provision in the courts decisions and judicial application of constitution. As for the court s citation of the Constitution, we should treat it differently according to the corresponding different situations. 25 Why is Judicialisation of the Constitution Self-evident? To the advocates of judicialization of the constitution or constitutional judicialization (xianfa sifahua), or judicial application of the constitution (xianfa de sifa shiyong), while recognising the Constitution is the supreme law of the country, they accept that the Constitution is also a law, sharing the basic features of the law (such as the embodiment of legal norms), it has legal effect and it has the binding force which other national laws have. Interestingly, almost all textbooks on constitutional law in China accept the thesis that constitutional law is a branch of law. In short, the courts have no power not to apply the Constitution; 26 or put this way, the courts do have a constitutional duty to apply the Constitution. Wang Lei, by publishing two noticeable books, 27 fervently advocates the implementation of the judicialization of the constitution. In Judicialization of the Constitution, Wang fi rst discusses at length the following theses: the Constitution is a Law, judicial application of the Constitution, the Constitution should have direct legal effect, and the Constitution should have sanctioning force, before arriving at the conclusion that in essence, the judicialization of the Constitution is to make the implementation of the Constitution actually happen, and it would vitalize the Constitution should the Constitution be judicialised Tong Zhiwei, The Application of the Constitution Should Follow the Path Stipulated by the Constitution Itself (2008) 6 Zhongguo Faxue (China Legal Science). Following this logic, the law in Art 4 of the Organic Law of the People s Courts which states that The people s courts shall exercise judicial power independently, in accordance with the provisions of law should neither include the Constitution. 25 Ibid. 26 Xiao Weiyun, The Constitution is the Basic Legal Source Guiding Adjudicative Work (2002) 3 Faxue Zazhi (Journal of Legal Science). 27 Wang Lei, (i) Xianfa de Sifahua (Judicialization of the Constitution) (Peking: China University of Politics and Law, 2000, hereinafter referred to as Wang (i) ); and (ii) Xuanze Xianfa (Choosing Constitution) (Peking: Peking University Press, 2003, Wang (ii) ). 28 Ibid, Wang (i), Chs I III, and at 153.

9 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 721 It is worth noting these interesting facts: fi rstly, Wang Lei s thesis appeared before the occurrence of Qi Yuling; secondly, Grand Justice Huang Songyou, then Vice-President of the Supreme People s Court (the SPC) and the brain of Qi Yuling decision, adopted the term and expression of judicialization of the Constitution and expressed a similar rationale in his article in support of the decision of Qi Yuling by the SPC. 29 It is believed, but cannot be proved, that Huang later lost his position partially because of his liberal approach to the role and function of the court, his reference to Marbury v Madison and his promotion and admiration of the American model of judicial system. 30 While all scholars of constitutional law and jurisprudence recognise that the Constitution, being the fundamental law of the country, has the highest legal effect, 31 not all of them agree that the Constitution has a sufficiently direct legal effect which endorses its direct application in courts. Wang thinks that being the fundamental law, it [the Constitution] regulates social relations which not only include relations under public law but also relations under private law, as well as other relations of social rights (relating to right to education, right to work and other social, economic and cultural rights) that are neither public nor private of nature. 32 In considering whether the introduction of the Constitution in the courts is justified, it is helpful to refer to the following constitutional provisions: First of all, The people of all nationalities, all State organs, the armed forces, all political parties and public organizations and all enterprises 29 Huang Songyou, Judicialization of the Constitution and its Signifi cance A Talk about the Reply Issued by the Supreme People s Court Today Renmin Fayuan Bao (People s Courts Daily) 13 August In his article, Huang wrote that: I think that we should gradually introduce the constitution in judicial proceedings in judicial practice in China, and take the Constitution for legal basis when adjudicating cases and cite constitutional provisions in the judgments. Due to the fact that there is no specifi c constitutional court in China, the realization of judicialization of the Constitution may refer to the American model under which ordinary courts handle constitutional cases directly; in this way, all disputes over constitutional problems can be received and adjudicated by ordinary courts according to ordinary procedures, and in handling this type of cases, the courts take the Constitution for the basis of judgment. The realization of judicialization of the Constitution would certainly bring about positive and significant impact on the construction of legal system in China. Ibid. 31 Cf, for example, Xu Chongde, Xianfa (Constitutional Law) (Peking: Renmin University of China Press, 1999) 10. Also, see the last paragraph of the Preamble of the Constitution: This Constitution, in legal form, and defi nes the basic system and basic tasks of the State; it is the fundamental law of the State and has supreme legal authority. 32 Wang Lei (n 27 above, Wang (i)), p 4, 6 7.

10 722 Guobin Zhu (2013) HKLJ and institutions in the country must take the Constitution as the basic standard of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation ; 33 All State organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. 34 In Chinese constitutional law, all state organs should include people s courts that have obligation to ensure the application of the Constitution in the forum of court. Secondly, The PRC governs the country according to law and constructs a Socialist rule of law state. 35 It is generally understood that governing the country according to law (yifa zhiguo) means fi rst of all a government according to constitution (yixian zhiguo). Adjudicating cases according to law is an integral part and a basic element of the rule of law, and the courts shall base its decisions on the Constitution after all. Thirdly, The State upholds the uniformity and dignity of the Socialist legal system, 36 and No laws or administrative or local regulations may contravene the Constitution. 37 In the hierarchy of law, the Constitution enjoys the highest position and is the criterion according to which constitutionality and legality of the legislative and executive acts are to be assessed and established by and in the courts. The Constitution is a governing law over all other national laws, and embodies the highest system of norms overriding civil, criminal and administrative legal norms when there is a discrepancy over or confl ict between them. Maintaining the order of constitutional value is the guarantee of the uniformity and dignity of the Socialist legal system. Finally, Organic Law of the People s Courts and Law on Judges both require the Constitution to be observed by the courts and the judiciary, and judges shall be loyal to the Constitution. Broadly speaking, strict observation of the Constitution by judges means loyal application of the Constitution in the courts. Judicialisation of the Constitution: a Mission Impossible? Among the many reasons that prevent the judicial application of the Constitution in China, a Reply to Xinjiang Higher People s Court signed by the SPC in 1955 deserves our close scrutiny. Actually this 33 PRC Constitution, Preamble. 34 PRC Constitution, Art 5(4). 35 PRC Constitution, Art 5(1). 36 PRC Constitution, Art 5(2). 37 PRC Constitution, Art 5(3).

11 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 723 Reply also serves as the main argument in support of the above-cited compromising thesis. Entitled Reply on the Improperness of Citing the Constitution for the Basis of Determination of Offence and Sentencing in Criminal Judgments, issued on 30 July 1955, the SPC decided that we agree with your Court that in criminal judgments, the Constitution shall not be cited for the basis of determination of offence and sentencing, and this was based on the following considerations: (i) The Constitution of the PRC is the fundamental law of the our country, and is the mother law of all other laws ; (ii) Although the Constitution has defi ned the line between legality and illegality in respect of the most important matters of the State life, it doesn t prescribe how to determine the offences and how to sentence in criminal aspect. 38 It is widely accepted that the 1955 Reply provides the basis and rationale for the courts not to cite constitutional provisions in deciding cases and in the judgments. 39 Wang Lei also believes that the 1955 Reply has impacted very negatively on the current practice. 40 Indeed, the 1955 Reply can be regarded as the major obstacle to courts application of the Constitution. The Reply to Jiangsu Higher People s Court issued by the SPC on 28 October 1986 constitutes an extra obstacle on the way to constitutional application in and by the courts. Titled Reply on How to Cite Legal Normative Documents by the People s Courts when Drafting Legal instruments, this Reply, still effective, clearly states that when drafting the legal instruments: (i) the people s courts may cite the laws enacted by the NPC and the NPCSC, and administrative regulations and rules by the State Council; (ii) they may cite local regulations made by the local people s congresses at a provincial level and of national autonomous areas; (iii) they may refer to departmental orders and replies by the functional departments of the State Council, to the decisions and resolutions adopted by the local people s congresses at county level, and to decisions, orders and rules issued by the local people s governments at all levels provided that they do not contravene the Constitution, laws and administrative regulations, however they shall not quote them; and (iv) they shall 38 This Reply can be found on certain websites, for example, at ndlaw.cn/ fagui/p_1/ html, leno=10382, chinabaike.com/law/zy/sf/fy/ html. (visited on 12 June 2013). It is also included in Wang Yu (n 15 above), p 1, and Wang Lei (n 27 above), Wang (ii), pp Wang Yu (n 15 above), Preface, p Wang Lei (n 27 above), Wang (ii), p 45.

12 724 Guobin Zhu (2013) HKLJ implement the opinions and replies of various kinds issued by the SPC, but shall not directly quote them. 41 Simply put, the Constitution has literally excluded by the SPC from the list of normative documents that can be referred to or cited in court decisions. In turn, the Reply has reinforced the impression, and consolidated the practice, that the courts are not allowed to cite the constitutional provisions. Last but not the least, Administrative Litigation Law, enacted in 1989 by the NPC, has further consolidated this longtime practice by remaining silent with respect to whether the Constitution can be used as the legal basis for adjudication of administrative cases in the courts. 42 The non-applicability of constitutional provisions in the courts has thus been established by the above-cited 1955 Reply, the 1986 Reply and the 1999 Administrative Litigation Law. Because of this, Wang Lei writes that sadly, the half-century history of constitutional law of the Republic is a history of refusal to choose the Constitution by judicial institutions This Reply can be found on certain websites, for example, zd5z3pa1bc1b.html, (visited on 12 June 2013). It is also included in Wang Lei (n 27 above), Wang (ii), pp Article 52, Administrative Litigation Law: In handling administrative cases, the people s courts shall take the law, administrative rules and regulations and local regulations as the criteria. Local regulations shall be applicable to administrative cases within the corresponding administrative areas. In handling administrative cases of a national autonomous area, the people s courts shall also take the regulations on autonomy and separate regulations of the national autonomous area as the criteria. Article 53: In handling administrative cases, the people s courts shall take, as references, regulations formulated and announced by ministries or commissions under the State Council in accordance with the law and administrative rules and regulations, decisions or orders of the State Council and regulations formulated and announced, in accordance with the law and administrative rules and regulations of the State Council, by the people s governments of provinces, autonomous regions and municipalities directly under the Central Government, of the cities where the people s governments of provinces and autonomous regions are located, and of the larger cities approved as such by the State Council. If a people s court considers regulations formulated and announced by a local people s government to be inconsistent with regulations formulated and announced by a ministry or commission under the State Council, or if it considers regulations formulated and announced by ministries or commissions under the State Council to be inconsistent with each other, the Supreme People s Court shall refer the matter to the State Council for interpretation or ruling. 43 Wang Lei (n 27 above), Wang (ii), p 51.

13 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 725 The Constitutional Rights in the Courtroom In the past two decades judicial practice, the courts, mainly local courts, although being discouraged from applying the constitutional provisions in adjudicating cases and in judicial instruments, have made individual attempts to change the normality, and produced a number of cases in which the Constitution was either quoted or referred to for legal basis for judgment. Though the number of cases is small (less than one hundred based on the reported materials), and the legal issues revealed in these cases cannot always be qualifi ed as constitutional issues or problems, 44 their impact should not be underestimated. The far-reaching signifi cance is, to some extent, disproportionate to the actual number. Furthermore, these cases relate to the fundamental rights of citizens, including the right to equality, the right to personal dignity and reputation, the right to privacy, the right to education, labour rights and the right to labourrelated injury compensation, etc. All these attempts deserve our close inquiry and scrutiny. Constitutional Review: West and East do not Meet in China Before conducting a review of these constitutional cases, it is necessary to clarify and draw a demarcation line between the citation of a constitutional provision in a given case by either parties to justify the claim or to support the decision, and the exercise of constitutional review power by the courts. Constitutional review, another expression of judicial review closely associated with the discussion of constitutional law, is the power of courts to examine whether legislation enacted by the parliament or acts of the executive authorities are consistent with the written constitution and, within this query, to determine their validity. This system commands a primordial condition: courts receive jurisdiction through the constitution and use that jurisdiction to determine constitutionality. 45 Applying this understanding to the Chinese system, we can quickly conclude this style of constitutional review does not exist in China. Instead, the mainstream position holds that the courts are not empowered to conduct constitutional review, and thus cannot enjoy this constitutional power. This is supported by the constitutional text, according to which only the NPC and the NPCSC can hold this power and exercise it Here I refer to the cases reported in the publications cited in n 15 above. 45 Zhu Guobin (n 7 above), p See PRC Constitution, Arts 62 and 67, regarding the powers and functions of the NPC and the NPCSC respectively.

14 726 Guobin Zhu (2013) HKLJ Constitutional law scholars in China try to fi nd a way out and claim that the courts shall have the power to apply the Constitution in adjudicating cases, which means judicial application of the Constitution (xianfa de sifa shiyong). 47 The Constitution can be implemented by legislative and executive powers, and the application by the courts is one of the ways of enforcement. The observation of the Constitution by citizens is also a way of constitutional application. Furthermore, the expression of judicial application of the Constitution, better than judicialization of the Constitution, is consistent with the standard expression of the application of law. 48 Wang Yu also defends the judicial application of the constitution and holds that asserting the judicial application of the Constitution does not equate to recognize that the courts have the power of constitutional review, and further, have the power to invalidate a law. 49 The attempt to distinguish constitutional review and judicial application of constitution by these scholars seems to serve the purpose of avoiding political incorrectness. They are well-intentioned considering that the dominant ideology and jurisprudence under the Party-state structure literally constrains them from making such a statement. It is also risky to them, considering that academic freedom regarding politically sensitive and socially contentious issues in China is very limited. By upholding this distinction, they have to confront a theoretical impossibility. It is well-known that in mature democracies and particularly in Western constitutional law, the primary role of the courts is to enforce the constitution, and to interpret it if and when necessary, and therefore, conducting constitutional review by the courts is the constitutional duty of the courts which is self-evident. 50 This constitutional arrangement is a refl ection of the constitutional principle of separation of powers according to which the state power is distributed between the executive, legislative and judicial branches. The independent judiciary has a vital constitutional role to ensure that the acts of the executive and legislative branches comply fully with the constitution and the law, and that citizens fundamental rights and freedoms, which are at the heart of a democratic system, are fully safeguarded. 47 Hu Jinguang holds that it is better to use judicial application of constitution rather than judicialization of constitution. Cf Hu Jinguang, The Case of Qi Yuling and Judicial Application of the Constitution available at aspx?id=7633 (visited on 12 June 2013). 48 Ibid. 49 Wang Yu (n 15 above), Preface, p Interestingly, the Court of Final Appeal and the Court of Appeal of Hong Kong under the PRC endorsed this position on various occasions. See, for example, Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4,

15 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 727 In this sense, and even in the sense of judicial application/enforcement of constitution as advocated by some Chinese scholars, the courts cannot avoid the examination of constitutionality of all normative documents including laws, administrative regulations, local regulations and rules, departmental rules, local governmental rules, etc., and also cannot restrain from the review of the legality of executive acts based on Administrative Litigation Law. It is obvious that, without the power to examine the constitutionality of legislative and executive acts, the judicial application/ enforcement of constitution would be no more than empty words. On the other hand, claiming this power for the courts would contradict with the current structure under the people s congress system. In short, judicial application of constitution seems to contravene the current constitutional system. Against this understanding, will the theory of judicial application/ enforcement of constitution lose its footing in practice? Wang Yu turns to the Law on Legislation for assistance. The Law states as follows: Where the State Council, the Central Military Committee, the Supreme People s Court, the Supreme People s Procuratorate, the various special committees of the Standing Committee and the Standing Committee of the People s Congress of various provinces, autonomous regions and municipalities directly under the central government deems that an administrative regulation, local decree, autonomous decree or special decree contravenes the Constitution or a national law, it may make a written request to the NPCSC for review, and the offi ce of operation of the Standing Committee shall distribute such request to the relevant special committees for review and comments. 51 Indeed, this provision provides the SPC with an opportunity to discover the unconstitutionality and illegality of laws and regulations and make a judicial referral to the NPCSC for resolution. It shows that the NPCSC, not the courts or the SPC, enjoys the power of constitutional review. However, the Law on Legislation is silent about whether the court that has discovered whether this contravention should halt the judicial process until the outcome of review by the NPCSC reaches it to resume the hearing. No other laws and/or judicial interpretations by the SPC have provided an answer to it. In the light of this constitutional arrangement in respect of the function of the judiciary, Zhu Fuhui holds that the current Constitution simply excludes the possibility of judicial application of the Constitution, and the organs of constitutional application are the NPC and the NPCSC Law on Legislation, Art 90(1). 52 Zhu Fuhui, Treating Rationally the Abolishment of the Reply to Qi Yuling by the SPC (2009) 3 Faxue (Legal Science) 35.

16 728 Guobin Zhu (2013) HKLJ Hai Liang thinks that the courts can only apply the Constitution indirectly under the current constitutional framework, and it is the clear requirement of the Constitution. 53 Do the Courts Idle away their Time? The courts everywhere in the world are supposed to play a guardian role of constitutional rights by controlling the constitutionality and legality of the legislative and executive acts, and by imposing sanctions against the acts and activities that have infringed upon citizens rights and freedoms undertaken either by the government, its offi cials and social organisations. In other words, the courts are under constitutional duty to preserve human rights in general and to protect citizens fundamental rights and freedoms in particular. This ideal equally applies to China. Are the Chinese courts completely in a passive position with regard to the application of constitutional rights clauses? The answer is in the negative. There is indeed room for the courts to bring into play their proper role. First of all, the space exists in the course of discovery of the contravention between the Constitution and laws and/or regulations concerned in the case. The courts should exercise the judicial power independently and actively, and discover the inconsistency between Constitution and laws, and between national laws and local laws, and report it to the competent organs for resolution. In Seeds Case of Luoyang (2003), Judge Li of the Luoyang Intermediate People s Court found the inconsistency existing between the Provincial Ordinance regarding the Management of Seeds and the Law on Seeds, and declared the relevant provisions in the Provincial Ordinance contravening the national law and thus invalid. 54 Secondly, interpretation of law according to the order of constitutionality should be an effective approach to the application of constitution. However this proposition is controversial to some 53 Hai Liang, The Courts Shall still Apply the Constitution Indirectly under the Current Political Structure (2009) 4 Faxue (Legal Science) 45. It is interesting to note that in Hai Liang s article, he mentioned an internal document specially issued by some competent organ/s criticizing the proposition of judicialization of constitution because it aimed at promoting separation of powers in China and changing the fundamental political system of China. In the end, he believes that judicialization of constitution has been more or less politicised in China. However he did not disclose the name of the organ/s. ibid., p Seeds Case of Luoyang is reported in Han Dayuan, Zhongguo Xianfa Shili Yanjiu (I) (Study of Constitutional Instances and Cases of China (I)), n 15 above, pp

17 Vol 43 Part 2 Assessing the Realisation of Constitutional Rights in China 729 scholars. 55 In view of the diffi culty of declaring unconstitutionality of the executive and legislative acts by the courts, the courts can only examine and review laws and regulations based on the presumption of constitutionality, 56 and enforce them in trials and in their judgments. In so doing, the courts recognise that these legislative enactments are constitutional, and thus, a good (and healthy) relationship can develop between judicial and legislative powers. In practice, any rash action would jeopardise this relationship and in turn, harm the authority of the courts. 57 Thirdly, citing constitutional provisions in support of legal reasoning or to provide a legal basis for judicial decision-making is a positive approach for the courts to follow. 58 It is the maximum that the courts can do at this moment in China where on the one hand, the promotion of separation of powers is categorically prohibited, 59 and on the other, the courts and the judges generally aspire to play a greater role in providing sound protection of rights and freedoms. As early as in April 1988, an Intermediate People s Court of Shanghai cited the constitutional provisions regarding the freedom of expression and freedom of publication in the part of legal reasoning of an appeal to justify the decision. 60 In Wang Faying v Liu Zhen et al. decided in October 1988, the Shijiazhuang Intermediate People s Court referred 55 Zhang Xiang supports this thesis. Cf Zhang Xiang, Two Types of Constitutional Cases: the Possible Infl uence of the Constitution on the Judicial Instances viewed from Interpretation of Law on the Basis of Constitutionality (2008) 3 Zhongguo Faxue (China Legal Science). Xie Weiyan criticizes this approach and asserts that interpretation of law on the basis of constitutionality is not the appropriate way of judicial application of the constitution. Cf Xie Weiyan, On the interpretation of law based on the constitutionality is not the appropriate way of judicial application of constitution (2009) 6 Zhongguo Faxue (China Legal Science). 56 The presumption of constitutionality is one of the principles guiding judicial review. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The [US] Supreme Court has given three reasons for this presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognise the legislature s institutional superiority over the courts at making factual determinations. Cf F. Andrew Hessick, Rethinking the Presumption of Constitutionality (2010) 85 Notre Dame L. Rev.; also available at (visited on 13 June 2013). 57 In the above-cited Seeds Case of Luoyang, Judge Li who tried the case was removed from the post by the Luoyang Intermediate People s Congress. Although the reason for doing so was open for questioning and challenge, the judge concerned might have taken another approach to address the inconsistency of laws. 58 Zhu Fuhui supports the idea of citing the constitutional provisions in civil, criminal and administrative decisions by the courts, but he insists that the citation should not be understood as a way of judicial application of the constitution. He also thinks citation, if and when necessary, should be done in the part of legal reasoning to provide further reasons. See Zhu Fuhui, A study of the practice of citing the Constitution in judicial judgments by the people s courts in China (2010) 1 Xiandai Faxue (Modern Law Science) 3 4, Wu Bangguo (n 13 above). 60 Shen Yafu & Mu Chunling v Du Rong, reported in Wang Yu (n 15 above), p 2.