The Death of Constitutional Litigation in China?

On December 18, 2008, with little fanfare, the Supreme People’s Court (SPC) withdrew its 2001 interpretation in the Qi Yuling case. The interpretation was one of 27 interpretations invalidated by the SPC on that date. The Qi Yuling interpretation was “no longer applied,” according to the Court’s terse explanation, and was therefore withdrawn.

Known variously as “China’s first constitutional case” and as “China’s Marbury v. Madison,” the facts behind the Qi Yuling case are nothing short of strange: in 1990, Qi, then a 17-year-old high school student in a village in Shandong Province, had her college entrance exam scores stolen by a classmate, Chen Xiaoqi. Chen then used those scores to apply to college in Qi’s name. Qi was led to believe that she had failed the exam, and therefore missed her chance at a college education. Chen, maintaining her false identity, went off to college and found a job working in a local bank [1]. Years later, Qi finally discovered the ruse, and sued.

In court, Qi claimed that her identity had been stolen. But she also claimed that Chen’s actions had blocked her constitutional right to education, and that she should be compensated for the infringement of her constitutional rights as well. Unsure of what to do with the novel right to education claim, the provincial court sought guidance from the Supreme People’s Court, which issued a somewhat surprising response: it held that, because Qi Yuling’s constitutional rights had been violated, she could indeed claim damages.

Thus instructed, the provincial court found in favor of Qi Yuling on both her identity theft claim and on the right to education claim, awarding Qi damages on both counts.

In case anyone missed the point, then-SPC justice Huang Songyou, in an article published in official house organ People’s Court Daily, openly stated that the Qi Yuling interpretation was meant to trigger explicit use of the Chinese Constitution by the courts. “I believe that the Constitution can be gradually introduced into legal proceedings in China,” Huang wrote [2]. Huang also argued that such action was, in his view, consistent with China’s current constitutional framework. Only “various misunderstandings” had kept the courts from using the Constitution in years past [3].

As a number of scholars would quickly point out, the SPC’s intervention in the Qi Yuling case was flawed in a number of ways. Yet what the Court was trying to accomplish was absolutely fundamental. According to the conventional understanding of the Chinese constitutional system, the Chinese constitution is not subject to judicial interpretation or application. There is no separation of powers, and the courts are unable to step in to defend individual rights against state encroachment. Huang Songyou and his compatriots—almost certainly including his fellow Southerner Xiao Yang, the then-Chief Justice of the SPC—were trying to subtly alter that understanding, and bring the courts into the constitutional game.  

Sadly, despite the SPC’s best efforts to avoid crossing any political lines, the response from above was negative [4].

By contrast, the Qi Yuling decision drew strong support from legal academics, many of whom saw the case as a possible stepping stone to meaningful constitutional review. In an interview with the intellectual weekly Southern Weekend, prominent public law scholar Jiang Ming’an praised the Qi Yuling interpretation. “For decades, our Constitution has been packed away and put on a high shelf,” Jiang said. “We have been waiting for decades, and finally we have arrived at this opportunity. … We scholars should strongly push forward with it" [5].

Jiang Ming’an was by no means alone in his support for Qi Yuling. Wang Lei, Jiang’s colleague at Beijing University, also highlighted the case’s importance. “Courts cannot possibly but use the constitution,” Wang argued. “The central meaning of the Qi Yuling case is that it smashes traditional concepts, and tells us how to judicialize [sic] the constitution under China’s current system" [6].

Wang’s comments are typical in that he attempted to rationalize the Qi Yuling case as part of the existing framework, rather than suggesting that Qi Yuling was a break from the past. In Wang’s view, Qi Yuling merely ushered in a change in understanding, an attempt to get rid of “traditional,” impliedly erroneous concepts that had held back constitutional development.  

To be sure, certain aspects of the SPC’s interpretation would come under criticism from scholars across the political spectrum after 2001. Nonetheless, the key concept of judicial review advanced by the Interpretation continued to enjoy strong support from the academic community. In its report on the invalidation of the Qi Yuling interpretation, Caijing magazine reported that support for Qi among academics was widespread. “There was no lack of legal academics who challenged the appropriateness of direct application of constitutional provisions in that particular case,” Caijing noted. “But on the question of whether the constitution could serve as a basis for court judgments, scholars without exception answered in the affirmative” (Caijing, February 2).

Politics in Command: Qi Yuling and the Three Supremes

Why did the SPC formally withdraw the Qi Yuling interpretation? Little is known about the politics behind the Court’s move. Although the SPC has been pruning outdated interpretations, it seems unlikely that Qi Yuling was fully a part of that process. Other cancelled interpretations had been superceded by new laws and regulations (Caijing, February 2, 2009), but progress on Qi Yuling had been more or less at a standstill for several years. Moreover, neither the SPC nor the NPC followed the cancellation of the Qi interpretation with an alternative plan for constitutional development.

Some observers believe that the decision to revoke Qi Yuling is tied to the new judicial reform policy, referred to as the “three supremes,” being implemented by SPC President Wang Shengjun. Since taking office in March 2008, Wang has departed from the approach mapped out by his predecessor Xiao Yang. Instead of emphasizing the role of the courts as neutral adjudicators of disputes, he has instead called on judges to consider both the interests of the Communist Party and public opinion (South China Morning Post, October 23, 2008). Taken together, Party interests, public opinion, and legal rules are to constitute the “three supremes” of judicial decision making.

Perhaps the fullest articulation of Chief Justice Wang’s views can be found in an article published in the August 2008 edition of the Party theoretical journal Seeking Truth. Entitled “Fully Implement the Work of the 17th Party Congress, Resolutely Carry Out the Work of the People’s Courts,” the article makes clear that court reform has taken a left turn.

After opening with references to the key role of the courts in preserving social stability and national security, the Chief Justice states that the rule of law is but one of three elements that guide court policy and practice. Elsewhere in his Seeking Truth article, Wang notes that a central element of judicial work is the “promotion of social harmony,” and suggests that the courts’ efficacy on this front be used as an important standard in the evaluation of court work.

At first glance, such an approach might not seem all that bad. Placing a premium on social stability might mean, for example, that courts encourage local developers to pay more in compensation for land grabs, or that they nudge local employers to settle up on workers’ unpaid wages. But in too many cases, rather than seeking to solve problems, local courts might look to collaborate with local governments to suppress protests and jail apparent troublemakers. All too often, repressive measures may be seen as more cost-effective and less time-consuming than dealing with the problem itself. In other words, the appearance of social stability might win out over deep-seated social problems.

More importantly, this new approach could delay much-needed reforms. Instead of taking steps to strengthen judicial independence, Chief Justice Wang’s policy strengthens ties between local courts and the local party structure. Wang has signaled that courts will not be evaluated on the basis of their ability to fairly adjudicate difficult cases. Instead, they will be graded—and presumably professionally rewarded or punished—based on how much their work contributes to local stability. As a result, local judges and local officials may see their destinies as crucially linked, and therefore seek to collaborate even more than they have in the past. The implications for judicial independence are obvious.  

It is impossible to know what connection, if any, exists between the new populist court reform policy, the revocation of Qi Yuling, and the downfall of SPC Vice President Huang Songyou (Huang, an SPC judge at the time of the Qi Yuling interpretation, was promoted to SPC Vice President in 2002.). Huang, the man most closely associated with the 2001 Interpretation, was taken into custody—specifically a form of detention for Party members known as “shuanggui”—in mid-October 2008, and has not been heard from since. According to media reports, Huang was brought down for “abuse of power for personal gain, serious economic irregularities, and degenerate behavior in his personal life” (Caijing, October 28, 2008). In particular, Huang was linked to a corruption scheme involving Guangdong High Court Judge Yang Xiancai (Caijing, July 9, 2008).

Where to go from here? China University of Politics and Law scholar and longtime Caijing magazine legal advisor Xiao Han has revived a suggestion that has been made by a number of legal scholars over the past three decades: the creation of a Continental European-style constitutional court (Caijing, February 2).

According to Xiao, Qi Yuling’s failure was directly related to the weakness of the court system: it is unable to handle the burden of constitutional adjudication. Xiao lists the lack of judicial independence and low public trust as two important reasons why the courts aren’t up to the task. Without meaningful reforms, Xiao concludes, a system of constitutional review of the sort envisaged by Qi Yuling would lead to “sweeping chaos” and the “complete disintegration of control.”  

Instead, Xiao argues in favor of a central constitutional court. Such a court, based in Beijing, would be able to avoid the various parochial influences and other systemic weaknesses that plague local courts across China. It would be able to be both final and authoritative in its pronouncements on constitutional doctrine. And its judges, selected by China’s top leadership for fixed terms of several years, would be politically insulated.

Xiao’s well-meaning proposal would seem to be politically unfeasible, especially given that other trends are also negative. In late 2008, for example, rumors circulated that the Politburo had agreed that the court system would be funded out of the national budget, thus severing an important tie between local governments and local courts, one that local governments had been exploiting for years. But more recent reports indicate that the proposal for centralized funding has been watered down, and that Beijing will only partially subsidize the judicial system. Provincial and local governments will maintain leverage over local courts.

Writing in these pages roughly one year ago, my colleague Keith Hand and I suggested that the prospects for meaningful constitutional reform were limited (China Brief, February 4, 2008). Sadly, this analysis has been bourne out by events of the past year.

Given the somewhat prohibitive environment for top-down reforms, it may be more fruitful for Chinese lawyers, academics, and activists to continue to pursue bottom-up strategies. In particular, lawyers and academics should continue to make rigorous, creative, and useful constitutional arguments to Chinese judges. Lawyers may also want to consider experimenting with greater use of international and comparative law. Thus far, explicit reference to international norms and comparative law in court briefings, while not non-existent, has been rare. While few judges will formally and explicitly respond to such arguments, nonetheless this approach will at least keep constitutionalism alive as a meaningful legal concept until the political winds shift yet again. Constitutional litigation in China has not yet died, but it will need additional care and feeding from its supporters to endure this latest turn of events.

Notes

1. Chen’s subterfuge was said to be so successful that, when she was discovered, it was not known whether her own husband knew her true identity. James Kynge, China Shakes the World, p. 162.
2. Huang Songyou, “Judicial Application of the Constitution and its Significance,” People’s Court Daily, August 13, 2001.
3. Ibid.
4. Kellogg, Courageous Explorers? Education Litigation and Judicial Innovation in China, 20 Harv. Hum. Rts. J. 141, 184-5 (2007).
5.  “Jiang Ming’an, Jiang Ping, He Weifang, Cai Dingjian: a roundtable discussion on judicialization of the constitution,” Southern Weekend, August 13, 2001.
6. Wang Lei, Xuanze Xianfa (To Choose Constitutional Law), Beijing University Press, 2004, p. 47. Emphasis added.