V. Development of Rule of Law and the Institutions of Democratic Governance

V(b) LEGAL RESTRAINTS ON STATE POWER

Constitutional Enforcement | Administrative Litigation and State Compensation | Additional Administrative Law Developments | Implications of Developing Legal Constraints on State Power

FINDINGS

• The Chinese government has affirmed the right of citizens to petition the National People's Congress Standing Committee for review of regulations that violate the Constitution or national law. The effect of this right remains limited, however, since Chinese citizens have no right to compel such review or to challenge the constitutionality of government actions.
• Constitutional enforcement remains a politically sensitive topic in China, and the near-term prospects for the establishment of a more robust constitutional enforcement mechanism are remote. The Chinese government has ruled out establishing a constitutional court or giving people's courts the power to review the constitutionality of laws and regulations.
• The Chinese government has enacted laws to curb administrative abuses, but Chinese officials retain significant administrative discretion. Existing legal mechanisms provide only limited checks on arbitrary or unlawful government actions.

Constitutional Enforcement

Over the past year, Chinese leaders continued to emphasize the importance of the Constitution, but focused primarily on constitutional study and government-supervised implementation measures. In his annual report in March 2005, for example, Wu Bangguo, Chairman of the National People's Congress Standing Committee (NPCSC), stressed the importance of implementing and studying the Constitution.¹ In December 2004, authorities made constitutional consciousness the subject of a national legal awareness day.² Government statements stressed the significance of March 2004 constitutional amendments, which included a new provision stating explicitly that "the State respects and safeguards human rights." Official statements also highlighted legislation and rectification campaigns designed to implement these amendments.³

The Chinese government has affirmed the right of citizens to petition the NPCSC for review of regulations that conflict with the Constitution and national law. Under the Constitution, the power of constitutional enforcement rests with the NPCSC.⁴ Chinese experts have long criticized the NPCSC for failing to exercise this function.⁵ In 2004, the NPCSC announced the formation of a new office to assist it in reviewing regulations that conflict with the Constitution and national law.⁶ An NPC official publicly confirmed in December 2004 that citizens have the right to petition the office for review of regulations.⁷ Official news media published accounts of at least one such petition and encouraged citizens to submit petitions in other cases.⁸

To date, however, the practical impact of the right to petition for NPCSC review remains limited. As one Chinese legal expert notes, the office is only empowered to make recommendations to the NPCSC;⁹ it is not required to act on citizen petitions, and citizens have no power to request review of "unconstitutional acts" by officials or laws passed by the NPC.¹⁰ Whether the office has a set of review procedures in place or has yet taken any formal action to invalidate a regulation is unclear. One Commission source suggests that in several cases, the NPCSC has worked behind the scenes to have inconsistent local regulations repealed, perhaps to avoid publicly embarrassing local authorities with a formal decision.¹¹

Chinese courts do not have the power either to apply constitutional provisions in the absence of concrete implementing legislation or to strike down laws or regulations that are inconsistent with the Constitution.¹² In recent years, however, lawyers have worked to establish case precedents for judicial application of constitutional principles by incorporating constitutional arguments into legal cases.¹³ At a Commission hearing in 2005, a respected American expert on Chinese law suggested that even if the NPCSC is unwilling to permit Chinese courts to review the validity of laws or regulations, courts could be given the power to apply constitutional provisions in settling disputes related to administrative or private actions.¹⁴

Reform-minded scholars and lawyers continued to raise constitutional issues in Chinese courts over the past year. In November 2004, the All-China Lawyer's Association announced the formation of a Constitutional and Human Rights Committee to research constitutional implementation, train lawyers, and "use individual cases to help promote China's constitutional litigation."¹⁵ One such case arose in April 2005, when two Henan lawyers cited constitutional protections in a lawsuit they filed against the Shenzhen public security bureau. The bureau had posted a banner encouraging Shenzhen residents to report on "Henan" criminals, an act the plaintiffs argued was discriminatory.¹⁶ Constitutional arguments were raised in other cases as well.¹⁷ Although efforts to encourage courts to apply constitutional principles in specific cases have been largely unsuccessful, lawyers also promoted efforts to incorporate constitutional protections into national laws, which courts are permitted to apply in their decisions.¹⁸

Prospects appear remote for the establishment of a more robust constitutional enforcement mechanism in the near term. Constitutional enforcement remains a sensitive topic, and senior Party leaders have warned officials to guard against efforts to promote Western-style constitutional reform.¹⁹ In December 2004, the government ruled out establishing a constitutional court or some other mechanism for judicial review of the constitutionality of laws and official acts and stated that the Constitution is not a basis for litigation.²⁰ Although scholars continued to study constitutional enforcement and held several conferences on the issue, authorities forced the cancellation of an international conference on constitutionalism and human rights in May 2005.²¹ In April 2005, authorities also shut down a Beijing consultancy that planned to assist citizens in enforcing their human rights.²² Chinese scholars suggest that if the government introduces any new constitutional enforcement mechanism in the near-term, it is most likely to be a special constitutional enforcement commission under the National People's Congress.²³

Administrative Litigation and State Compensation

China's 1989 Administrative Litigation Law (ALL) and 1994 State Compensation Law (SCL) provide citizens with limited checks on arbitrary government action, but growth in the number of cases brought under the two laws appears to be leveling off. The ALL gives Chinese citizens the right to file lawsuits to challenge "concrete" administrative acts that violate their lawful rights and interests.²⁴ The SCL provides citizens with the right to obtain compensation in a limited number of situations in which administrative or criminal justice agencies engage in illegal conduct.²⁵ After reaching a peak of 98,759 cases in 1999, the number of administrative lawsuits handled in Chinese courts has fluctuated and declined slightly since 2000, with courts handling 92,192 cases in 2004.²⁶ The number of SCL cases handled by people's courts has remained low and leveled off at about 3,000 cases per year.²⁷ Over the same period, the number of citizen petitions and social protests has grown considerably.²⁸ In comparison to the more than 11 million citizen petitions filed in 2003 [see Section V(e)—Access to Justice], the number of ALL and SCL claims is relatively small.

The limited scope of the ALL and SCL and official resistance to both laws have limited their practical utility. The ALL only applies to "concrete" administrative decisions, not government-issued directives or rules, while compensation standards under the SCL remain rigid and the amounts awarded are small.²⁹ Chinese sources also cite complicated procedures, legal loopholes that facilitate official resistance to claims, the failure of administrative defendants to attend trials, administrative interference with the courts, and citizen fears of official retribution as problems that undermine the effectiveness of both laws.³⁰ In a November 2004 article, China Youth Online noted that citizen plaintiffs won about 21 percent of the administrative cases filed in the first nine months of 2004, but suggested that success rates should be higher because most citizens are cautious about suing officials.³¹ In the case of the SCL, plaintiffs have reportedly won compensation in about one-third of the state compensation cases that people's courts have adjudicated since 1995.³² Several Chinese reports demonstrate that government departments often refuse to honor compensation awards, however, with one commentator concluding that the SCL "sounds good but is of no use."³³ The Chinese government is considering amendments to both laws that may address some of these concerns.³⁴

Additional Administrative Law Developments

China's Administrative Licensing Law (Licensing Law) has created new legal limits on administrative discretion. The Licensing Law, which came into effect in July 2004, is intended to improve administrative efficiency and curb corruption by controlling the number of administrative agencies with licensing power. The law also limits the matters subject to licensing requirements, clarifies and enhances the transparency of licensing procedures, and provides time limits within which authorities must act on licenses.³⁵ Official news media have argued that the Licensing Law is a significant step toward the rule of law, declaring that it "prompted the government to start a revolution with respect to limiting its authority and protecting private rights."³⁶ In March 2005, the People's Daily reported that the State Council had canceled or rectified more than 1,795 administrative licenses since the Licensing Law became effective.³⁷ Although the law is potentially a significant development in limiting bureaucratic discretion, most of its enforcement provisions emphasize government supervision and inspection, rather than citizen enforcement through the courts.³⁸

The Chinese government continues to work on a comprehensive Administrative Procedure Act (APA), but the law appears to be mired in drafting debates.³⁹ The APA would be the first comprehensive national law on administrative procedure and is expected to fill gaps in China's existing administrative law framework. Drafts of the law have been under consideration for several years.⁴⁰ The law was not included in the 2005 legislative plan for the NPC, however, and sources with knowledge of the drafting process suggest that it could be several years before it is enacted.⁴¹

Implications of Developing Legal Constraints on State Power

The Chinese government has placed heavy rhetorical emphasis on respect for the Constitution and "administration according to law,"⁴² and some of the laws and policies described above are positive steps toward these goals. Government officials retain enormous discretion, however, and existing legal mechanisms neither permit Chinese citizens to enforce their constitutional rights nor provide a consistent and reliable check on arbitrary administrative acts. Given such problems and the limited independence of Chinese courts [see Section V(c)—China's Judicial System], prospects are limited for the development of true legal restraints on state power.

Notes to Section V(b)—Legal Restraints on State Power

1 National People's Congress Standing Committee Work Report, 9 March 05.

2 Li Weiwei, "Theme of Legal System Publicity Day Determined: Developing Constitutional Spirit and Strengthening Legal Concepts" [Fazhi xuanchuanri zhuti queding: hongyang xianfa jingsheng zengqiang fazhi guannian], Xinhua, reprinted in People's Daily (Online), 16 November 04.

3 For statements on the significance of the amendments and implementation measures, see, e.g. "China's Progress on Human Rights in 2004," State Council Information Office, April 2005 (FBIS, 13 April 05); Supreme People's Procuratorate Work Report, 9 March 05; "Including Human Rights in The Constitution Is a Milestone in China's Human Rights Cause" [Renquan ruxian shi zhongguo renquan shiye fazhan de lichengpai], Xinhua, reprinted in Legal Daily (Online), 22 February 05.

4 PRC Constitution, arts. 62, 67.

5 A recent example of such complaints can be found in Liao Weihua, "Experts Suggest Establishing a Special Constitutional Committee" [Zhuanjia jianyi she xianfa zhuanmen weiyuanhui], Beijing News (Online), 21 September 04.

6 For the creation of the NPCSC office to review unconstitutional laws and regulations, see CECC, 2004 Annual Report, 66–70 (discussing constitutional reform).

7 "NPC Explains Constitutional Review System, Any Citizen Can Petition for Constitutional Review" [Renda jie weixian shenchazhi, renhe gongmin ke tiqing weixian shencha], Beijing News, reprinted in Xinhua (Online), 2 December 04.

8 "Two Citizens Petition the NPC to Resolve Legislative Conflict" [Liang renmin shangsu quanguo renda qingqiu jiejue fal chongtu], Procuratorate Daily (Online), 3 August 05. In May 2005, the China Daily published several commentaries attacking local regulations that prohibit panhandling. One concluded that "there has not been an effective examination of such local regulations" and that "the only way to challenge such a local regulation is to have citizens or institutions apply to the NPC Standing Committee." "Legitimacy of Local Rules," China Daily (Online), 18 May 05. For the second commentary, see "Begging Bans Reveal Intolerant Society," China Daily (Online), 23 May 05.

9 Commission Staff Interview.

10 Li Shuming, "Commentary: The Rule of Law Significance of 'Any Citizen May Petition for Constitutional Examination" [Pinglun: "Renhe gongmin dou keyi tiqing weixian shencha" de fazhi yiyi], Procuratorate Daily (Online), 8 December 04.

11 Commission Staff Interview.

12 Commission Staff Interviews. In 2001, the SPC authorized a court in Shandong province to rely on constitutional provisions on the right to education in deciding a case. However, the case involved a tort claim between two private parties and not a claim against the government or an effort to overturn a law or regulation. Shen Kui, "Is it the Beginning or the End of the Era of the Run of the Constitution? Re-Interpreting China's First Constitutional Case," 12 Pacific Rim Law ∓ Policy Journal 200, 209–10 (January 2003).

13 Commission Staff Interview. See also, Liao Weihua, "Experts Propose Establishment of a Constitutional Litigation System" [Zhuanjia changyi jianli xianfa susong zhidu], Beijing News (Online), 15 January 05.

14 Law in Political Transition: Lessons From East Asia and The Road Ahead for China, Hearing of the Congressional-Executive Commission on China, 26 July 05, Written Statement submitted by Jerome A. Cohen, Professor, New York University School of Law.

15 Chen Jiren, "Chinese Lawyers Wave the Flag of the Constitution and Human Rights," Law and Life, Vol. 275, December 2004 (translation on file with Commission). This article ties the creation of the ACLA committee to a series of rule of law developments that encouraged ACLA to push more aggressively for the protection of constitutional rights:

The years 2002, 2003, and 2004 have had great significance in China's rule of law process. The SARS epidemic triggered a nationwide discussion on government transparency and citizens' right to information; the Sun Zhigang case brought out attention to citizens' rights to petition and government review of unconstitutional action; the case of a couple being prosecuted for watching pornography ignited a fight over where we should draw the line between private rights and public rights; and the Hepatitis-B virus carriers' labor rights case made a huge national impact. Those different types of cases gave Chinese lawyers opportunities to get involved in constitutional and human rights issues, and they managed to get some significant work done. The time was ripe for the establishment of the Constitution and Human Rights Committee of ACLA.

16 "Henan Natives Battle Against Hometown Notoriety," China Daily (Online), 25 May 05 (FBIS, 25 May 05); Raymond Zhou, "Henan Stigma Highlights Regional Bias," China Daily (Online), 16 June 05 (FBIS, 16 June 05).

17 In June 2005, the writer Zhang Lin pleaded innocent to criminal subversion charges stemming from Internet essays he had posted, arguing that the charges violated his constitutionally protected freedom of speech. "An Interview With Zhang Lin's Wife Fang Cao and Defense Lawyer Mo Shaoping" [Caifang zhanglin qi fang cao yu bianhu lüshi Mo Shaoping], Dajiyuan (Online), 5 April 05; "Airing Views Not a Crime, Says Lawyer for Activist," Agence France-Presse, reprinted in South China Morning Post (Online), 22 June 05. Also in June 2005, constitutional provisions on gender equality were reportedly raised in a discrimination lawsuit in Chengdu. Huang Zhiling, "Women Win Sexual Discrimination Case," China Daily, 20 June 05 (FBIS, 20 June 05).

18 Commission Staff Interview. Chen Jiren, "Chinese Lawyers Wave the Flag of the Constitution and Human Rights." According to these sources, there are efforts underway to research or draft legislation on freedom of residence, anti-discrimination, the freedom to strike, freedom of the press, and other issues. A lawyer in the Henan discrimination case expressed "hope the case would give rise to the promulgation of an anti-discrimination law . . ." Kristine Kwok, "Shenzhen Police Sued for Prejudice," South China Morning Post, 3 May 05 (FBIS, 3 May 05).

19 Various sources emphasize that the subject of constitutional enforcement is a sensitive one in China. See, e.g., Li Shuming, "Commentary: The Rule of Law Significance of 'Any Citizen May Petition for Constitutional Examination"; Chen Jiren, "Chinese Lawyers Wave the Flag of the Constitution and Human Rights"; Philip P. Pan, "Hu Tightens Party's Grip on Power; Chinese Leader Seen as Limiting Freedoms," Washington Post (Online), 25 April 05.

20 "NPC Explains Constitutional Review System, Any Citizen Can Petition for Constitutional Review," Beijing News; "My Country Implements the Constitution by NPC Supervision, Constitution Still Cannot Be The Basis of Litigation" [Wo guo you renda jiandu xianfa shishi, xianfa reng buneng chengwei susong genju], People's Daily (Online), 1 December 04.

21 For reports on conferences that took place over the past year, see Liao Weihua, "Expert Suggests Establishing a Special Constitutional Committee"; Liu Hui, "Constitutional Research Association 2004 Annual Meeting Calls for Raising the Status of Constitutional Study"[Xianfaxue yanjiuhui 2004 nian nianhui huyu tigao xianfaxue diwei], Procuratorate Daily (Online) 25 October 04; "China Law Center Holds Conference in China on Constitutional Review," Yale Law School Web site, 17 March 05; Liao Weihua, "Experts Propose Establishment of a Constitutional Litigation System"; Joseph Kahn, "China Calls Off Rights Conference," New York Times (Online), 18 May 04.

22 Human Rights in China Press Release, "Dissidents Thwarted in Opening Human Rights Consultancy in Beijing," 22 April 05.

23 Commission Staff Interview; see also Liao Weihua, "Experts Suggest Establishing a Special Constitutional Committee."

24 PRC Administrative Litigation Law, enacted 4 April 89, arts. 2, 11.

25 PRC State Compensation Law, enacted 12 May 94, art. 2. The law provides citizens and entities with the right to obtain compensation in a limited number of situations in which they are harmed by the illegal acts of government officials. Under certain provisions, citizens have the right to seek compensation from public security, procuratorial, judicial, and prison management agencies for a range of illegal acts that take place in the course of criminal investigations, prosecutions, and sentencing.

26 Number of first instance administrative litigation cases completed by Chinese courts, by year: 1999 (98,759); 2000 (86,674); 2001 (95,984); 2002 (84,942); 2003 (88,050); 2004 (92,192). "Situation of Adjudication Work and Building of Cadre of the People's Courts, 1998–2002" [1998–2002 nian renmin fayuan shenpan gongzuo he duiwu jianshe qingkuang], China Court Net (Online), 12 March 03; "Statistical Table on the Situation of First Instance Administrative Cases Tried By Courts Nationwide in 2003" [2003 nian quanguo fayuan shenli xingzheng yishen anjian qingkuang tongjibiao], China Court Net (Online), 20 April 05; Supreme People's Court 2004 Work Report, 9 March 05. The SPC reported that courts completed 114,896 administrative litigation cases in 2003. However, the SPC reported that courts completed 92,192 first instance cases in 2004, and that this was a 4.7 percent increase over the prior year. The only logical explanation for the discrepancy is that the SPC combined first and second instance cases to arrive at the 114,896 number reported for 2003.

27 Number of state compensation cases completed by Chinese courts, by year: 1999 (2,113); 2000 (2,400); 2001 (2,705); 2002 (2,642); 2003 (3,124); 2004 (3,134). "Situation of Adjudication Work and Building of Cadre of the People's Courts, 1998–2002," China Court Net; Supreme People's Court 2003 Work Report, 10 March 04; SPC 2004 Work Report, 9 March 05. These court statistics do not include all state compensation cases, as some cases are handled directly by the "defendant" agency and not appealed to people's courts.

28 See Section II—Introduction and Section V(e)—Access to Justice, for the growing number of public protests and citizen petitions.

29 Ling Hu, "Gov't Administration Should Be in Line With Law," China Daily (Online), 16 November 04; Li Fei, "Official Documents Must Come Under Scrutiny," China Daily, 4 June 05 (FBIS, 4 June 05); Wang Songmiao, "Commentary: State Compensation: Why Is it 'Pleasant to the Ear But Not Use' " [Pinglun: Guojia peichang: weishenme "zhongting bu zhongyong"], Procuratorate Daily (Online), 5 January 05. The law applies only to a range of "specific administrative acts" that target a specific person or entity, and not to government regulations and policies that are generally binding. However, the scope of the law has gradually been expanded under SPC Interpretations.

30 See, e.g., Zheng Lifei, "Officials Forced to Appear in Court," China Daily, 18 July 03 (FBIS, 18 July 03); "Lack of Confidence Is the Main Reason for the Decline in Administrative Lawsuits" [Quefa xinxin shi xingzheng susongan shao zhuyin], China Youth Daily, reprinted in Xinhua (Online), 17 October 03; Irene Wang, "Beijing Citizens Turn to Law," South China Morning Post, 6 January 04 (FBIS, 6 January 04); Fan Fu, "20 Years of Administrative Adjudication: Not Suing on Pain of Death A Thing of the Past" [Xingzheng shenpan 20 nian: chusi bu gao guan cheng wangshi], China Court Net, 23 February 04; "Citizens Suing Officials, Defendants Seat Is Empty" [Min gao guan, bei gao xi shan 'kong dang dang'], Shenyang Evening News, reprinted in People's Daily (Online), 26 February 04; Xiao Yang, "Placing Parameters on Administrative Justice," China Daily, 1 April 04 (FBIS, 1 April 04); Guo Zhichun, "What the Large Contrast in Success Rates of Citizens Suing Officials Explains" [Min gao guan shengsul de juda fancha shuoming le shenme], China Youth Online, 18 November 04; Wang Songmiao, "Commentary: State Compensation: Why Is it 'Pleasant to the Ear But Not Use.' "

31 Guo Zhichun, "What the Large Contrast in Success Rates of Citizens Suing Officials Explains." SPC officials cite a 30 percent overall plaintiff success rate from 1989 to 2003. "Thirty Percent of Citizen Plaintiffs Win Lawsuits Against Government Departments," Xinhua, 1 April 04 (FBIS, 1 April 04).

32 "Including Human Rights in The Constitution Is a Milestone in China's Human Rights Cause," Xinhua.

33 Xu Lai, "SPC Demands: Resolutely Enforce Effective State Compensation Judgments," China Lawyer Net, 14 November 03 (citing SPC Vice President as acknowledging that the enforcement rate dips as low as 10 percent in some locales); Wang Songmiao, "Commentary: State Compensation: Why Is it 'Pleasant to the Ear But No Use' "; see also "SPC: Administrative Trials Must Vigorously Grasp the Execution of Effective Judgments and Decisions" [Zuigaofa: xingzhen shenpan yao henzhua shengxiao caipan yu panjue de zhixing], Xinhua (Online), 24 January 04.

34 For discussion of possible amendments, see Yang Yuxin, "Bright Points and Blind Areas in the Major Amendment Draft of the Administration Litigation Law" [Xingzheng susongfa 'da xiugao' jingdian yu mangqu], Legal Daily (Online), 26 May 05; Qin Ping, " 'Major Amendment' or 'Minor Adjustment' to the State Compensation Law" [Guojian peichangfa shi "daxiu" haishi "xiaobu"], Legal Daily (Online), 29 July 05.

35 PRC Administrative Licensing Law, adopted 1 August 03. For statements in China's official media on the purpose of the law, see, e.g., Xiao Jiao, "Law Defines G'vt Licensing Role," China Daily, 28 August 03 (FBIS, 28 August 03); "Licensing Law—Driving Force of China's Administrative Reform," Xinhua, 6 February 04 (FBIS, 6 February 04); "Concept of Human Rights Went Deep in Legislation and Government Power Was Controlled in 2004," People's Daily, 23 December 04 (FBIS, 23 December 04); Shen Lutao, Zou Shengwen, and Zhao Ruizhen, "2004: Witness Steps in China's Democratic Legal System" [2004: jianzheng zhongguo minzhu fazhi de jiaobu], Xinhua, reprinted in People's Daily (Online), 28 February 05.

36 "Concept of Human Rights Went Deep in Legislation and Government Power Was Controlled in 2004," People's Daily.

37 "Five Major Flashpoints in Government Work," People's Daily, 31 March 05 (FBIS, 31 March 05).

38 PRC Administrative Licensing Law, enacted 1 August 03, arts. 70–81. Almost all enforcement provisions focus on top-down supervision and rectification, not on bottom-up citizen enforcement. The emphasis on top-down enforcement is evident in the Circular of the State Council on implementation of the Licensing Law. State Council Notice on Implementing the Administrative Licensing Law [Guowuyuan guanyu guanche shishi xingzheng xukefa de tongzhi], issued 9 September 03. The one provision that facilitates direct citizen enforcement is Article 71 of the Licensing Law. In a recent survey of 1,166 enterprises in Beijing municipality, 85 percent expressed dissatisfaction with their ability to obtain compensation for violations of the Licensing Law. Li Li, "How Far We Have Gone Towards Rule of Law Government" [Women xiang fazhi zhengfu maijin le duoshao], Legal Daily (Online), 22 March 05.

39 The APA, or xingzheng chengxufa is sometimes confused with the Administrative Litigation Law because some sources also translate the Administrative Litigation Law (xingzheng susongfa) as "Administrative Procedure Law."

40 Cui Li, Yuan Chunlin, "Procedural Blind Spots Lead to 'Citizens Suing Officials'—NPCSC Proposes Formulating an Administrative Procedure Act" [Chengxu mangdian daozhi 'min gao guan'—daibiao weiuan jianyi zhiding xingzheng xukefa], China Youth Online, 14 March 05.

41 Commission Staff Correspondence; "Final Decision on 05 Legislative Plan" [05 nian lifa jihua gaoding], China Youth Online, 3 March 05.

42 For example, in April 2004, the State Council issued a plan, entitled "Implementation Program for Comprehensively Promoting Administration According to Law," to build the rule of law over a ten-year period. "Wen Jiabao Emphasizes Comprehensively Promoting Administration According to Law and Striving to Build a Government With the Rule of Law at a National Teleconference on Administration According to Law," Xinhua, 29 June 04 (FBIS, 29 June 04).