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 seventy 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 .
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 (Southern Weekend [Nanfang Zhoumo] and Justice Net [Zhengyi Wang], December 6, 2007). 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 in China
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. 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 . 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 .
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” (Chinanews.com, December 4, 2002). 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” (Legal Daily [Fazhi ribao], December 4, 2002). 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 (The Washington Post, August 27, 2003) .
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 .
In the wake of this apparent success, China has witnessed a surge of grassroots constitutional activism. Over the last four years, citizens have filed at least 40 proposals for constitutional and legislative review with the NPCSC . 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 .
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 (Beijing News [Xin Jing Bao], Dec. 20, 2005). 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 . 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 . 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 . 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: Lowered Expectations for Constitutional Review as a Legal Process
In spite of 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 twenty-fifth 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 (China.com.cn, October 15, 2007). 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 (People’s Daily, November 29, 2007; Legal Daily [Fazhi Ribao], December 4, 2007). 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 (Legal Daily [Fazhi ribao], December 4, 2007).
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 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 . Whereas in the 1980s, only a handful of texts by Chinese scholars elucidated the virtues of constitutional rights protection by the courts , 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 .
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 U.S. constitutional law .
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.
1. For the text of the proposal, see the Lawyer Watch Website at https://www.ccwlawyer.com/center.asp?idd=1293
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, e.g., 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.