By Stanley Lubman, The Wall Street Journal
The Chinese Constitution, like that of many other nations, proclaims the rights of citizens, but in practice does not support those rights: Unlike many other constitutions, the Chinese version can’t be used as the basis for a legal challenge of acts that violate a citizen’s rights. But in recent years, some courts have begun to test this limit in lawsuits brought by citizens to challenge certain acts of state agencies. In rare cases the courts have begun to invoke the foreign concept “due process.” In early September, a Beijing court did so explicitly in an intriguing case involving the microblogging site Weibo, China’s version of Twitter.
In that case, the Beijing No. 1 Intermediate Court declared earlier this month that Weibo is a “space for free expression… protected by the Constitution of the People’s Republic of China” (emphasis supplied) and stated that Weibo could be used as a medium to express criticism because it exercised “a supervisory role that is positive for society.”
This citation of the Constitution by a respected court expresses a noticeable departure from the established policy. As China legal expert Thomas Kellogg put it, the conventional understanding of the Chinese constitutional system is that “the Chinese Constitution is not subject to judicial interpretation or application.”
There have been prior challenges, most notably in a 2001 provincial court decision that was approved by the Supreme People’s Court. The plaintiff, Qi Yuling, complained that a theft of her identity by a fellow student that prevented her from attending college had violated her right to an education, which is stated in the Constitution. A justice of the Supreme People’s Court, Huang Songyou, followed this decision with an article in the People’s Court Daily expressing support for the court’s use of the Constitution to protect individual rights. But in 2008 the Supreme People’s Court reversed itself and withdrew the interpretation in the Qi Yuling case, depriving it of any legal effect.
Kellogg, in the article cited above, speculated that the reversal by the Court may be linked to the sharp turn backward in court reform that began in 2008. In October, 2008, the President of the Court, Wang Shengjun–echoing an earlier speech by President Hu Juntao–announced that judges had to take into consideration not only legal rules but the interests of the Communist Party and public opinion. These three elements constitute the “three Supremes,” which the courts must follow in reaching their decisions. Policy reform has been stalled and discussion of establishing a constitutional court, one approach advocated by some legal scholars, has gone nowhere.
The issue remains live, however, and scholars have noticed that the courts do sometimes refer to the Constitution even if they have not explicitly based decisions on its provisions. In another article, Kellogg and Keith Hand stated that reformers “keep a public spotlight on the deficiencies of the system and maintain pressure for institutional progress” and “are slowly raising public consciousness of constitutional issues.”
Even if debate persists about the role of the courts in referencing the Constitution, serious reforms are unlikely to appear soon. If courts are to be given a greater voice on rights-related matters, major changes in China’s governance would be required that don’t seem possible in the current political climate. As the late legal scholar Cai Dingjian wrote last year, “China still has a long way to go until it reaches the rule of law, and reform of the political system is still necessary.” (Cai Dingjian, “Social Transformation and the Development of Constitutionalism,” China’s Journey toward the Rule of Law: Legal Reform, 1978-2008 (Cai Dingjian & Wang Chenguang, eds, 2011) 51, at 96.)
Despite the failure to move constitutional reform forward based on the Constitution, the role of the courts in protecting rights will continue to receive the attention of law reformers and an increasing number of Chinese citizens. Sometimes, when an agency violates rules that have been established by legislation, the courts use “violation of statutory process” as the standard for decision. In recent years, interest has grown in litigating violations of rights without expressly relying on the Constitution or statutes. A notable illustration is the appearance of the concept of procedural justice, even “administrative due process,” (xingzheng zhengdang chengxu) a relatively recent addition to the Chinese legal vocabulary.
One example is administrative litigation, as shown by Professor He Haibo of Tsinghua University. (He Haibo, “The Dawn of the Due Process Principle in China,” Columbia Journal of Asian Law (Vol. 22, Fall 2008) 57.) Two cases cited by him show how far courts may venture. In both, local government agencies had transferred property without giving notice to plaintiffs with existing rights. In one, a court invalidated the transfer for lack of notice even though it did not indicate that notice was required by law. In the other, the applicable law did not require notice, but the court invalidated the transfer, in what He says is an example of “judiciallyapplied due process standards to evaluate administrative acts.” He Haibo acknowledges that references to “due process” are still rare, but concludes that “procedural legality requirements have strengthened.”
Chinese citizens were given the right in 1989 to sue the government in certain limited circumstances under the Administrative Litigation Law, and other laws have followed, expanding the scope of administrative law and the volume of administrative litigation. One recent example, expansion of citizen rights to assert claims for harm caused by intentional or negligent conduct by government agencies, was discussed in this column earlier this year.
The decision of the Beijing court in the Weibo case noted above and the slow growth of administrative law demonstrate that expanding the enforcement of rights already declared in Chinese law is an issue that will not go away. The constitutional argument may not gain strength in the near future, but some progress still seems possible around the edges of authoritarianism through litigation involving administrative procedure.