ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 283 33 of the law regarding the organization of the PRC courts,25 it was required that the SPC provide an explanation to the lower court of what law applied,how it was to be applied,the issues or questions of its decrees,and what interpretations it made.26 The matter was therefore referred to the SPC,which for the first time in the case cited Article 46 of the PRC Constitution as the basis for the right of education,as follows:"Citizens of the People's Republic of China have the duty as well as the right to receive education.The state promotes the all-round moral,intellectual and physical development of children and young people." The SPC received the case and rendered an answer and discussion in which the PRC Constitution was cited for the first time as authority for the fundamental rights to name,reputation,identity, and education. A.Reactions Pro and Con The Oi case caused great debate in PRC legal circles and drew comment from China-watchers around the world.27 A substantial number of scholars and commentators referred to it as a "great usurpation,"i.e.,the meddling of the judiciary in the affairs committed by the Constitution to the NPC and the NPCSC-in effect an ultra vires action.The central issue that attracted the attention of such commentators was the unnecessary invocation of the Constitution in deciding a civil lawsuit.The case could have been resolved entirely on the basis of statutory law,i.e.,the provisions of Sections 99 and 120 of the Civil Law regarding the rights of name and reputation.It was not until the appellate court referred the matter to the SPC for an explanation of the civil law that the Constitution's protection of the right to education was introduced.In discussing the outfall of the case,a judge of the SPC,Huang Songyou said,"Among all the kinds of laws applied in China,the Constitution used to be a source of embarrassment.... 2s人民法院组织法，Ren min fa yuan zu zhi fa[Organic Law of the People'Courts](promulgated by the Standing Comm.Nat'l People's Cong,Oct.31,2006,effective Jan.1,2007)available ar wwwjerb.com/zywn449/ca325131.htm (last visited Jan.25,2005)(P.R.C). See.e.gGao,supra note 4,at5,26(notes 65 through68 and accompanying text)
ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 283 33 of the law regarding the organization of the PRC courts, 25 it was required that the SPC provide an explanation to the lower court of what law applied, how it was to be applied, the issues or questions of its decrees, and what interpretations it made.26 The SPC received the case and rendered an answer and discussion in which the PRC Constitution was cited for the first time as authority for the fundamental rights to name, reputation, identity, and education. The matter was therefore referred to the SPC, which for the first time in the case cited Article 46 of the PRC Constitution as the basis for the right of education, as follows: “Citizens of the People’s Republic of China have the duty as well as the right to receive education. The state promotes the all-round moral, intellectual and physical development of children and young people.” A. Reactions Pro and Con The Qi case caused great debate in PRC legal circles and drew comment from China-watchers around the world.27 25 人民法院组织法, Ren min fa yuan zu zhi fa [Organic Law of the People’s Courts] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 31, 2006, effective Jan. 1, 2007) available at www.jcrb.com/zyw/n449/ca325131.htm (last visited Jan. 25, 2005) (P.R.C.). A substantial number of scholars and commentators referred to it as a “great usurpation,” i.e., the meddling of the judiciary in the affairs committed by the Constitution to the NPC and the NPCSC — in effect an ultra vires action. The central issue that attracted the attention of such commentators was the unnecessary invocation of the Constitution in deciding a civil lawsuit. The case could have been resolved entirely on the basis of statutory law, i.e., the provisions of Sections 99 and 120 of the Civil Law regarding the rights of name and reputation. It was not until the appellate court referred the matter to the SPC for an explanation of the civil law that the Constitution’s protection of the right to education was introduced. In discussing the outfall of the case, a judge of the SPC, Huang Songyou said, “Among all the kinds of laws applied in China, the Constitution used to be a source of embarrassment…. 26 Id. art. 33. 27 See, e.g., Gao, supra note 4, at 25, 26 (notes 65 through 68 and accompanying text)
ROBERT J.MORRIS 4/19/20126:38PM 284 TSINGHUA CHINA LAW REVIEW Vol.2:273 On the one hand,the Constitution is honored as the state's basic law, acting as the 'mother'of various laws and regulations;on the other hand,the majority of its content has been placed,neglected,'on the shelf in China's judicial activities,having no practical legal effect."2 But the idea of the Constitution's having no "practical legal effect"could be argued to be an unacceptable American idea. Yanan Peng considers this to be the manifest failure of a system in which constitutional review is "still an illusion,not a solution,"and in which constitutional rights "have been watered down to lose their focus and degenerate into private rights."Peng argues that Qi Yuling "entrenched this trend and enhanced Chinese misunderstanding of constitutional law's functions and nature."29 It is important to bear in mind what the decision did not ostensibly do.It did not review the actions of any national (i.e.,co- equal)government branch or bureau,nor did it hold any statute,rule. or regulation unconstitutional.It presented no challenge to Deng Xiaoping's "Four Cardinal Principles,"which collectively are the supreme law of the PRC.30 On the contrary,it added to the legal foundation of the lower courts'decisions in that it provided a constitutional basis on top of the statutory basis.It did not call into question the authority of the CCP.Professor Killion argues: "Finally,there is the issue of social rights.Contrary to Judge Huang's [Huang Songyou's]enunciation of a more justiciable 1982 Constitution,the July 24,2001 Reply [the]is the constitutionalization of social rights,rather than individual liberty. 8黄松有，宪法司法化及其意义：从最高人民法院今天的一个《批复》谈起，人民法院报，Huag Songyou,Xian fa hua ji qi yiyi:Cong zui gao renmin fa yuan de yi ge "pi fu"tan qi,ren min fa yuan bao Judicialization of Constitution and its Significance:Discussion on Today's"Answer"of the Supreme People's Court]PEOPLE'S CT.DAILY,Aug.13,2001,at B1,available ar http:/loldfyb.chinacourt.org/public/detdet.php?id-27083,translated in China's Marbury vs. Madison?:Direct Application o时the Constitution in Litigation,中因法律动向[CHINA LEGAL CHANGE],Sept.5,2001,at 2.Two months before Qi was de-utilized in 2008,Judge Huang was “detained”on charges of corruption. 2Yanan Peng.A Sheep in Wolf's Clothing-The PRC Constittion in Qi Yuling v.Chen Xiaoqi et al (2003),available at http://uschinanet.org/magazine/8.2002-2/mag5205.htm (last visited Mar.4,2004). 3Deng Xiaoping formulated the Four Cardinal Principles as follows: Keep to the socialist road; Uphold the dictatorship of the proletariat, Uphold the leadership of the [Chinese]Communist party; Uphold Marxism-Leninism and Mao Zedong Thought. Selected Works of Deng Xiaoping (1975-1982),p.172.I say the "supreme"law of the land because the Four Principles are "cardinal
ROBERT J. MORRIS 4/19/2012 6:38 PM 284 TSINGHUA CHINA LAW REVIEW Vol. 2:273 On the one hand, the Constitution is honored as the state’s basic law, acting as the ‘mother’ of various laws and regulations; on the other hand, the majority of its content has been placed, neglected, ‘on the shelf’ in China’s judicial activities, having no practical legal effect.”28 But the idea of the Constitution’s having no “practical legal effect” could be argued to be an unacceptable American idea. Yanan Peng considers this to be the manifest failure of a system in which constitutional review is “still an illusion, not a solution,” and in which constitutional rights “have been watered down to lose their focus and degenerate into private rights.” Peng argues that Qi Yuling “entrenched this trend and enhanced Chinese misunderstanding of constitutional law’s functions and nature.”29 It is important to bear in mind what the decision did not ostensibly do. It did not review the actions of any national (i.e., coequal) government branch or bureau, nor did it hold any statute, rule, or regulation unconstitutional. It presented no challenge to Deng Xiaoping’s “Four Cardinal Principles,” which collectively are the supreme law of the PRC.30 “Finally, there is the issue of social rights. Contrary to Judge Huang’s [Huang Songyou’s] enunciation of a more justiciable 1982 Constitution, the July 24, 2001 Reply [the 批 复 ] is the constitutionalization of social rights, rather than individual liberty. On the contrary, it added to the legal foundation of the lower courts’ decisions in that it provided a constitutional basis on top of the statutory basis. It did not call into question the authority of the CCP. Professor Killion argues: 28 黄松有, 宪法司法化及其意义: 从最高人民法院今天的一个《批复》谈起, 人民法院报, Huang Songyou, Xian fa hua ji qi yi yi: Cong zui gao renmin fa yuan de yi ge “pi fu” tan qi, ren min fa yuan bao [Judicialization of Constitution and its Significance: Discussion on Today’s “Answer” of the Supreme People’s Court] PEOPLE’S CT. DAILY, Aug. 13, 2001, at B1, available at http://oldfyb.chinacourt.org/public/detdet.php?id=27083, translated in China’s Marbury vs. Madison?:Direct Application of the Constitution in Litigation, 中国法律动向 [CHINA LEGAL CHANGE], Sept. 5, 2001, at 2. Two months before Qi was de-utilized in 2008, Judge Huang was “detained” on charges of corruption. 29 Yanan Peng, A Sheep in Wolf’s Clothing—The PRC Constitution in Qi Yuling v. Chen Xiaoqi et al (2003), available at http://uschinanet.org/magazine/8.2002-2/mag5205.htm (last visited Mar. 4, 2004). 30 Deng Xiaoping formulated the Four Cardinal Principles as follows: Keep to the socialist road; Uphold the dictatorship of the proletariat; Uphold the leadership of the [Chinese] Communist party; Uphold Marxism-Leninism and Mao Zedong Thought. Selected Works of Deng Xiaoping (1975-1982), p. 172. I say the “supreme” law of the land because the Four Principles are “cardinal
ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 285 Moreover and most important,the July 24,2001 Reply is not an express or implied grant of the power of constitutional review."3 "In order for a provision in the 1982 Constitution to be enforceable in a court of law,the provision must first be reduced to an ordinary legal norm through the judicial process of converting fundamental rights into ordinary laws and regulations.Only then does a person's cognizable legal right vest.32 Killion misunderstands both Huang's statement as well as the Oi case.It is not the judicial process that reduces a constitutional provision to an "ordinary legal norm"by "converting fundamental rights into ordinary laws and regulations."Such laws are made and promulgated by the NPC.The SPC,on the other hand,is given a limited power of applying them.Further,the constitutional importance of the Oi case is that,in fact,a statute governing the subject (right to education)did exist,but the Court nevertheless chose to give its Reply based on the Constitution,and it was not just a social right.It was individual liberty.As Professor Hualing Fu writes: "Civil law [as opposed to criminal law,not common law] presents the 'best face'of the Chinese legal system today.Judges in the civil division are the most competent at what they do.Why? Because the law here is less political.Civil cases traditionally involve disputes between people;the economic implications are limited;and the impact on other government departments is minimal. Absent political pressure,civil-division judges are allowed to reason, to analyze the legal issues.The result:judges in the civil division have seized the opportunity to develop the law.... Traditionally, conflicts between people are solved democratically.33 Not all commentators have agreed with Huang Songyou,and some have taken different approaches to the Oi case and its implications for PRC law.The SPC "applied"the Constitution amongst the civil parties,but it did not construe any statute or rule by M.Ulric Killion,China's Amended Constittion:Quest for Liberty and Independent Judicial Review, 4 WASH.U.GLOBAL STUDIES L.REV.43,72 (2005).It is difficult to fathom where Killion gets the date of July 24,2001.The SPC's is dated August 13,2001. 32 See id. Hualing Fu,Putting China's Judiciary into Perspective:Is It Independent,Competent,and Fair?,in BEYOND COMMON KNOWLEDGE:EMPIRICAL APPROACHES TO THE RULE OF LAW 173,190 (Erik G. Jensen Thomas C.Heller eds.,Stanford University Press,2003)(emphasis added)
ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 285 Moreover and most important, the July 24, 2001 Reply is not an express or implied grant of the power of constitutional review.”31 “In order for a provision in the 1982 Constitution to be enforceable in a court of law, the provision must first be reduced to an ordinary legal norm through the judicial process of converting fundamental rights into ordinary laws and regulations. Only then does a person’s cognizable legal right vest.”32 Killion misunderstands both Huang’s statement as well as the Qi case. It is not the judicial process that reduces a constitutional provision to an “ordinary legal norm” by “converting fundamental rights into ordinary laws and regulations.” Such laws are made and promulgated by the NPC. The SPC, on the other hand, is given a limited power of applying them. Further, the constitutional importance of the Qi case is that, in fact, a statute governing the subject (right to education) did exist, but the Court nevertheless chose to give its Reply based on the Constitution, and it was not just a social right. It was individual liberty. As Professor Hualing Fu writes: “Civil law [as opposed to criminal law, not common law] presents the ‘best face’ of the Chinese legal system today. Judges in the civil division are the most competent at what they do. Why? Because the law here is less political. Civil cases traditionally involve disputes between people; the economic implications are limited; and the impact on other government departments is minimal. Absent political pressure, civil-division judges are allowed to reason, to analyze the legal issues. The result: judges in the civil division have seized the opportunity to develop the law. . . . Traditionally, conflicts between people are solved democratically.”33 Not all commentators have agreed with Huang Songyou, and some have taken different approaches to the Qi case and its implications for PRC law. The SPC “applied” the Constitution amongst the civil parties, but it did not construe any statute or rule by 31 M. Ulric Killion, China’s Amended Constitution: Quest for Liberty and Independent Judicial Review, 4 WASH. U. GLOBAL STUDIES L. REV. 43, 72 (2005). It is difficult to fathom where Killion gets the date of July 24, 2001. The SPC’s 批复 is dated August 13, 2001. 32 See id. 33 Hualing Fu, Putting China’s Judiciary into Perspective: Is It Independent, Competent, and Fair?, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW 173, 190 (Erik G. Jensen & Thomas C. Heller eds., Stanford University Press, 2003) (emphasis added)
ROBERT J.MORRIS 4/19/20126:38PM 286 TSINGHUA CHINA LAW REVIEW Vol.2:273 comparing it against the Constitution as a measure,least of all strike the latter down for being "unconstitutional."Hence,Oi was above all a "safe"constitutional case for the SPC to flex its muscles and test the political waters.In this regard,and in this alone,it may be said to resemble Marbury.The full-blown constitutional action in Qi Yuling was a first in China's constitutional law.34 The SPC did not need to rely upon the Constitution in order for Ms.Qi to achieve what she wanted.The Court might have relied solely upon the Education Law.35 Certainly,therefore,the use by the Court of the 1982 Constitution moved that document to the position of a legal document in and of itself,rather than merely a statement of policy. A number of commentators still argue that using a statutory basis was and is the only proper way to enforce the right,and that recourse to the Constitution-what many of them pejoratively term the judicialization”(司法化)of the Constitution一is therefore improper.3 The mere assertion of a constitutional right by the 4See姚辉，中国的人格权法理论，Yao Hui,,zhong guo de ren ge quan fa li lun[Chinese Legal Theory of Personaliry Right],2 CHINESE L.SCI.115 (1995)(the right to education,as well as legal personality,might also be found in the international covenants,but this basis was not raised in the SPC's answer). 3s In much of the literature on the i case,there is no mention of any specific statutory basis for a"right to education."See Randall Peerenboom,The X-Files:Past and Present Portrayals of China's Alien "Legal System,"2(1)WASH.U.GLOBAL STUDIES L REV.37(2003).Randall states erroneously at page 92 n.160:"The Supreme Court [SPC]stated that the plaintiff's basic right to an education as provided in the [PRC]constitution should be protected even though there was no implementing law regarding the right to education."(emphasis added)The SPC's does not so state,and Chapter 1,Article 9 of the PRC Education Law (1995)guarantees the right thus: CHAPTER I GENERAL PROVISIONS Article 9 Citizens of the People's Republic of China shall have the right and obligation to receive education.All citizens,regardless of ethnic group,race,sex,occupation,property status or religious belief,shall enjoy equal opportunities for education according to law. 中华人民共和国教有法及其配套规定（北京：中因法制出版社，2001），P.2;第一章，第九条 [Education Law of the People's Republic of China and Relevant Regulations]2(China Legal Publishing SeeQiao xinsheng,Ping yize gai bian zhong guo xian zheng de si fa jie shi A Criticism of Judicial Interpretation Altering China's Constitutional Governance.available at http://www.civillaw.com.cn/article/default.asp?id=10156 (last visited Nov.20,2003)(P.R.C.)(Qiao likewise refers to Madison and Marbury v.Madison but to point out the differences between the American and Chinese systems);see generally,Tong zhiwei,Xian fa si fa hua'yin chu de shi shi fei fei-xian fa si fa shi yong yan jiu zhong de ji ge wen ti [Pros and Cons of the Expression of Constitutional Judicialization-Some Questions About the Study of the Use of Constitutional Adjudication,available at www.gongfa.com/tongzwxianfasifahua.htm (last visited Jan.21,2004) (P.RC.).Tong prefers the term宪法的司法适用性[the Constitution's judicial application or utilization]to "judicialization."The termis key here because it is the same term used by the SPC in December 2008 to announced that"application"of Qi has ceased
ROBERT J. MORRIS 4/19/2012 6:38 PM 286 TSINGHUA CHINA LAW REVIEW Vol. 2:273 comparing it against the Constitution as a measure, least of all strike the latter down for being “unconstitutional.” Hence, Qi was above all a “safe” constitutional case for the SPC to flex its muscles and test the political waters. In this regard, and in this alone, it may be said to resemble Marbury. The full-blown constitutional action in Qi Yuling was a first in China’s constitutional law. 34 The SPC did not need to rely upon the Constitution in order for Ms. Qi to achieve what she wanted. The Court might have relied solely upon the Education Law.35 Certainly, therefore, the use by the Court of the 1982 Constitution moved that document to the position of a legal document in and of itself, rather than merely a statement of policy. A number of commentators still argue that using a statutory basis was and is the only proper way to enforce the right, and that recourse to the Constitution — what many of them pejoratively term the “judicialization” (司法 化) of the Constitution — is therefore improper.36 34 See 姚辉, 中国的人格权法理论, Yao Hui, zhong guo de ren ge quan fa li lun [Chinese Legal Theory of Personality Right], 2 CHINESE L. SCI. 115 (1995) (the right to education, as well as legal personality, might also be found in the international covenants, but this basis was not raised in the SPC’s answer). The mere assertion of a constitutional right by the 35 In much of the literature on the Qi case, there is no mention of any specific statutory basis for a “right to education.” See Randall Peerenboom, The X-Files: Past and Present Portrayals of China’s Alien “Legal System,” 2(1) WASH. U. GLOBAL STUDIES L. REV. 37 (2003). Randall states erroneously at page 92 n.160: “The Supreme Court [SPC] stated that the plaintiff’s basic right to an education as provided in the [PRC] constitution should be protected even though there was no implementing law regarding the right to education.” (emphasis added) The SPC’s 批复 does not so state, and Chapter 1, Article 9 of the PRC Education Law (1995) guarantees the right thus: CHAPTER I GENERAL PROVISIONS Article 9 Citizens of the People’s Republic of China shall have the right and obligation to receive education. All citizens, regardless of ethnic group, race, sex, occupation, property status or religious belief, shall enjoy equal opportunities for education according to law. 中华人民共和国教育法及其配套规定 (北京: 中国法制出版社, 2001), p. 2; 第一章, 第九条 [Education Law of the People's Republic of China and Relevant Regulations] 2 (China Legal Publishing House, 2001). 36 See e.g., Qiao xinsheng, Ping yi ze gai bian zhong guo xian zheng de si fa jie shi [A Criticism of a Judicial Interpretation Altering China’s Constitutional Governance], available at http://www.civillaw.com.cn/article/default.asp?id=10156 (last visited Nov. 20, 2003) (P.R.C.) (Qiao likewise refers to Madison and Marbury v. Madison but to point out the differences between the American and Chinese systems); see generally, Tong zhiwei, ‘Xian fa si fa hua’ yin chu de shi shi fei fei – xian fa si fa shi yong yan jiu zhong de ji ge wen ti [Pros and Cons of the Expression of ‘Constitutional Judicialization’—Some Questions About the Study of the Use of Constitutional Adjudication], available at www.gongfa.com/tongzwxianfasifahua.htm (last visited Jan. 21, 2004) (P.R.C.). Tong prefers the term 宪法的司法适用性 [the Constitution’s judicial application or utilization] to “judicialization.” The term 适用 is key here because it is the same term used by the SPC in December 2008 to announced that “application” of Qi has ceased
ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 287 highest court is not necessarily tantamount to the assertion of the independence of the court itself.It is both these ideas in tandem that inhere in the doctrine of Marbury and its progeny B.Other Responses to Oi Yuling:Constitutional Judicialization A colloquy among Jiang Ping,a professor at China Zhengfa University,Jiang Mingan and He Weifang,professors at Beijing University,and Cai Dingjian,a member of the NPCSC,four liberal and progressive scholars of the PRC Constitution,sheds substantial light on the subject of "constitutional judicialization"vis-a-vis Oi Yuling.37 The basic questions they discuss are the jurisdiction of the SPC (as opposed to the NPC)to entertain and "interpret" constitutional cases,and whether Oi was in fact a true "constitutional"case.This leads them finally to a truly amazing (dare one say revolutionary)proposal.It is that what might be fitting for the PRC is precisely the system developed and at present in use in Taiwan:the Council of Grand Justices.He Weifang suggests as follows:"The Grand Justices of the Constitutional Court [proposed for the PRC]should enjoy the highest prestige among the community of legal scholars,and their number should not exceed fifteen,"a number approximating that of Taiwan's CGJ.In addition,in order to "harmonize"the legal and governmental system, "we can even go so far as to propose that the opinions of the minority of judges be published as dissenting opinions." These are precisely the innovations that were made in Taiwan to modernize the CGJ as a true constitutional court and give it power to effect constitutional review,including the power to declare acts of the other branches of government unconstitutional.That Oi could spark such insights suggests the forward-pointing and suggestive power of the case,and perhaps explains the abolition of the case in 2008.It further suggests the serious recognition by scholars that a constitutional system developed in Taiwan might befit the entire Chinese culture on the mainland,not necessarily because of political or ideological considerations,but because it works in modernizing For transcript,see http://www.civillaw.com.cn/research/content asp?type=?&programid =1&id=34 (last visited Oct.29,2003)
ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 287 highest court is not necessarily tantamount to the assertion of the independence of the court itself. It is both these ideas in tandem that inhere in the doctrine of Marbury and its progeny. B. Other Responses to Qi Yuling: Constitutional Judicialization A colloquy among Jiang Ping, a professor at China Zhengfa University, Jiang Mingan and He Weifang, professors at Beijing University, and Cai Dingjian, a member of the NPCSC, four liberal and progressive scholars of the PRC Constitution, sheds substantial light on the subject of “constitutional judicialization” vis-à-vis Qi Yuling. 37 These are precisely the innovations that were made in Taiwan to modernize the CGJ as a true constitutional court and give it power to effect constitutional review, including the power to declare acts of the other branches of government unconstitutional. That Qi could spark such insights suggests the forward-pointing and suggestive power of the case, and perhaps explains the abolition of the case in 2008. It further suggests the serious recognition by scholars that a constitutional system developed in Taiwan might befit the entire Chinese culture on the mainland, not necessarily because of political or ideological considerations, but because it works in modernizing The basic questions they discuss are the jurisdiction of the SPC (as opposed to the NPC) to entertain and “interpret” constitutional cases, and whether Qi was in fact a true “constitutional” case. This leads them finally to a truly amazing (dare one say revolutionary) proposal. It is that what might be fitting for the PRC is precisely the system developed and at present in use in Taiwan: the Council of Grand Justices. He Weifang suggests as follows: “The Grand Justices of the Constitutional Court [proposed for the PRC] should enjoy the highest prestige among the community of legal scholars, and their number should not exceed fifteen,” a number approximating that of Taiwan’s CGJ. In addition, in order to “harmonize” the legal and governmental system, “we can even go so far as to propose that the opinions of the minority of judges be published as dissenting opinions.” 37 For transcript, see http://www.civillaw.com.cn/research/content.asp?type=’ 百 家 ??’&programid =1&id=34 (last visited Oct.29, 2003)