Over the past 60 years the Western world has constitutionalised the protection of fundamental human rights. Nowadays, national and supranational judicial organs grant citizens a high level of protection against infringements against their most important individual rights. This was however thanks to a lengthy process that has been going on ever since the 18th century. With this movement of perfecting the protection of human rights, the West however also perfected its own superior attitude towards non-Western countries such as China.
Until 1911 China was an imperial state, but after the nationalist movement failed to govern to the people’s satisfaction the Chinese Communist Party (CCP) of Mao came to power in 1949. After six years of Communist administration China got its first constitution, but this document had no actual power and efforts such as these were shut down during the Cultural Revolution, as the country entered a period of extreme chaos and lawlessness. After Mao’s death in 1978 Deng Xiaoping however led the country to economic growth and modernisation, including a new state system.
Despite this positive evolution there seems to be a problem, as no modern state is criticized more by the international community for its lack of respect for human rights than China. This criticism is based partially on the West’s evolution and partially on China’s own evolution. In the last 30 years the eastern giant has build a legal and judicial system with some Western characteristics, but the government stays opposed to the notion of ‘Rule of Law’ (this means that the government is bound by foreseeable rules which can be enforced in court). So even though many features of the “new and improved” Chinese state may look similar to Western states, they lack the same foundation and dynamics. The same goes for China’s constitution. But does this all mean that China should be treated as the enemy, a well dressed bad guy? In order to answer this question it is first and foremost necessary to have a look at the function of a constitution. In the West it forms a well-known safeguard for the individual’s rights. But until the 20th century the Chinese vocabulary did not even have a word for “constitution” and in building a new system a lot of terminology had to be borrowed from the Japanese language. On top of that the Chinese constitution actually has a totally different purpose, namely collective social stability.
China’s constitutionalist tendencies
China’s current constitutional framework was adopted in 1982 and has been amended four times since that day. The constitution is the highest norm in the new Chinese legal system. It establishes a clear hierarchy of norms and appoints the National People’s Congress as its guardian. Most importantly, the constitutional framework emphasizes and guarantees particular individual rights, similar to Western constitutions. These rights include, amongst others, a right on education, a right to personal freedom and freedom of religion. This framework however did not envisage a constitutional review procedure, which should not come as a surprise. Even though China’s constitution has a similar form to its Western counterparts, it did not come about in a country with a democratic tradition and was influenced by values and habits different from those in the West. But despite the lack of a clear procedure of constitutional review, certain attempts to ensure the enforceability of the constitution were nevertheless made.
The first attempt occurred in 2001, when the Supreme People’s Court (SPC) formally ruled that a constitutional right should be judicially enforceable. This was the Qi Yuling case, a case of a young woman whose identity was stolen when a classmate switched their names on the university entrance exam. Throughout university and work this woman continued to use the name of her former classmate. Both the father of Qi and several authorities knew about the fraud but chose to ignore it. When Qi finally discovered this she went to court with two claims. The first claim was her right on identity, the second her right to education. The first right was easily recognized, but based on this right alone Qi would not have been able to obtain full restitution of damages.
The inclusion of the right to education would make full compensation possible, but this right was solely guaranteed by the constitution which could not be invoked in an individual court case. Nevertheless the local court asked the SPC if this right should be rendered enforceable. The Supreme Court then formally stated that this constitutional right should be guaranteed and the president of the SPC even published an article in which he compared the QI Yuling case to the American case of Marbury v. Madison. In this case the American Supreme Court exercised judicial review of the constitution for the first time, even though this power was not explicitly inscribed in the text of the constitution.
In 2007, during the Wang Denghui case, an administrative court enforced the constitutional right of ‘personal freedom’. Wang had been in an accident on his way home from the factory where he worked. His injuries were severe and prevented him from working. According to a regulation Wang’s accident classified as a work accident and he was therefore entitled to insurance. The factory however claimed this was not a work accident and rejected responsibility. According to the factory the internal rules prohibited workers to leave the factory without permission. The court rejected this reasoning, stating that it is of the highest importance for a person to be able to spend time with his family, and explicitly invoked the constitution in order to confirm that this is an essential part of one’s personal freedom.
However, this road to the enforcement of the constitution would shortly thereafter be cut off by the SPC when it formally withdrew its ‘Qi Yuling’ ruling. On top of that Western observers noticed a change in the courts behaviour. The CCP now explicitly promoted mediation instead of litigation both inside and outside of the courtroom. They also have instated a ‘grand mediation mechanism’ to deal with public sensitive issues such as the closing of a factory or fraudulent behaviour of government officials. At present, the invocability of constitutional rights in court remains highly contested.
Besides this, in the wake of the 2001 Supreme People’s Court judgment, Hu Jintao stated in 2003 that the constitution should be a weapon in the hands of the citizens. Following on that approach a Law on Legislation’s Constitutional Review Procedure has been adopted. But this procedure was never completed, as the Communist Party amended contested rules before they could be annulled. Nevertheless, this law proved its purpose in the Sun Zhigang case, a case that also shows a specific citizen-state dynamic. After being unable to identify himself to the authorities (although he was a legal resident) a young university student was taken into administrative detention under the highly contested custody and repatriation system. This system is based on a residence permit system and is intended to keep strays out of the cities. A few days after Suns detention the affiliated medical services of his detention clinic announced he had died due to sudden heart failure. Because of the enormous public attention and press coverage the case was further investigated, revealing that the guards had ordered detainees to beat Sun after he complained about his detention. Several guards and detainees were charged with his murder and only a few days later they were condemned to punishments ranging from 3 years of prison to death sentence. After this trial some scholars entered a proposal under the law of legislation to have the custody and repatriation regulation reviewed. Due to the enormous publicity the procedure was set into motion. However, before the regulation could be found contrary to the constitution the State Council announced that the regulation had already been replaced. This result is both positive and negative, as on the one hand it shows that the government can be persuaded by the people, but on the other hand demonstrates that the constitutional review procedure was rendered ineffective and hasn’t been used properly up till now.
Different society, different purpose
More generally, when it comes to the interaction between the CCP and its citizens there are two important remarks to be made. First of all, the CCP is very sensitive towards collective action and will do anything to ensure social stability. Secondly, both the CCP and the Chinese people are more easily inclined to resort to mediation than to litigation. This can be explained by the system (it’s heavily politicised and the courts are often in a weak position), by its history (the importance of the idea of the "mandate of heaven"), and by its values (non conflict-minded).
The "mandate of heaven" is a concept that dates back to imperial China and is particularly important. It meant that an emperor who was deposed by the people did not deserve to be emperor exactly because he had lost this mandate, which was related rather to a moral source of power than to a religious force. The traditional importance of possessing such a mandate might explain the CCP’s sensitivity concerning public unrest, and why the party seems more willing to implement systems of mediation and arbitration rather than accept a court’s jurisdiction. The ‘Grand Mediation System’ was already an attempt in this direction, but the system isn’t perfect as it leaves not enough room for citizen participation. Nevertheless, because it seems in line with China’s historical evolution (they were unfamiliar with litigation until the state reform in the 1980s) and because the current Chinese judges are crippled by flaws in the general system (for example their dependency on local administrations), the plan could possibly be used in creating a Chinese form of constitutional review.
So because copying Western concepts did not lead to satisfactory results a particularly Chinese flavour of experimentalism, grounded in the Chinese system’s political features, will need to be added to the application of any constitutional principles in order to make them work in the future. In addition, China’s experiences with constitutionalism show that the possibility of change is heavily dependent on a favourable political climate. This October is highly important in this respect, as the replacement of both the formal and informal leaders of the government will result in a power shift within the Communist Party. One could speculate that no big changes will occur during the first period of this new government’s leadership. But at the same time they might be less conservative, less bound by china’s fragmented history, and capable of drawing a line that will connect the dots in china’s political and historical evolution while investing in a bright future.
- SHEN KUI, “Is it a beginning of the era of the Rule of Constitution? Reinterpreting China’s First constitutional case”, Pacific Rim Law & Policy Journal, 2003, Vol. 12(1).
- JINGZHI WANG, “China First Case of Constitutional Freedom”, Democracy and Law, 2008.
- K. HAND, “Resolving Constitutional Disputes in China”, East Asian Law Review, 2012.
- Hu Jintao Stressed Progressively Establishing Constitutional Consciousness and Authority, ZHONGGUO XINWEN WANG [CHINANEWS.COM], 2002.
- YONGLING JIANG, The Mandate of Heaven and The Great Ming Code, Washington, 2011; K. BUHMANN, “Reforms of Administrative Law in the PRC and Vietnam: The Possible Role of the Legal Tradition”, www.heinonline.org.