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Zhu, Weak Cts, Weak W!"# C$%&'(, W!"# R)*+'(: A((!((),* '+! R!"-)("')$, $. C$,(')'%')$,"- R)*+'( ), '+! PRC C$%&'( Guobin Zhu* It is no use giving citizens rights if they cannot, when necessary, have access to the courts to enforce those rights – The Rt. Hon. Lord Woolf of Barnes§ Like many other constitutions, the Chinese Constitution (1982) enumerates a list of fundamental rights that citizens can enjoy. The 2004 Constitutional Amendment adds the phrase “The state respects and preserves human rights” to art.33 and marks a new page in rights protection in China. However the violation of citizens’ constitutional rights and freedoms by the PRC government and its of! cials and the unavailability of judicial remedies to curb this phenomenon have long been criticised inside China as well as outside. As a result, the realisation and guarantee of rights and freedom is far from being satisfactory. Firstly, focusing on the implementation of constitutional rights clauses, this article analyses why the current constitutional legal framework discourages direct application of the Constitution by/in the courts. Secondly, it examines the attempts made by the PRC courts in the recent past, and discusses their signi! cance in the protection of such rights. Thirdly, it further argues that although there can be no foreseeable substantial institutional breakthroughs in the current context of law and politics, the courts as positive enforcer of the Constitution can still play a limited but important and irreplaceable role in realising constitutional rights. To achieve it, a “dual-track approach” that involves both the NPCSC and the courts is promoted. * Associate Professor, PhD & Habilitation; School of Law, City University of Hong Kong. This article was ! rst presented at the 4th Asian Constitutional Law Forum held on 16–17 December 2011 at the University of Hong Kong. I am grateful to those who kindly provided their comments on the drafts during the conference and afterwards, including Christina Murray, Jack Burke, Mark Kielsgard, Zhang Xiang, Wang Kai, Xie Libing and Ren Xirong for their constructive comments on the drafts. I also wish to thank Ms Lai Chu Lau, Law Librarian of City University of Hong Kong, and her assistant Miss Rowena Cheung, for their tireless assistance. Finally, my special thanks go to anonymous reviewers of the submission. § The Rt. Hon. Lord Woolf of Barnes, “Preface” to Christopher Forsyth et al. (eds.), Effective Judicial Review: A Cornerstone of Good Governance (Oxford and New York: OUP, 2010) xxxviii. HHKLJ2-1KLJ2-1 __GuobinGuobin Zhu.inddZhu.indd 1 118/07/138/07/13 10:2610:26 AAMM 2 Guobin Zhu (2013) HKLJ Introduction The role of the court, the rights in the courtroom and constitutionalism in the transitional Chinese society have been central focal points of scholarship since recently. Several years ago, Cai Dingjian (2005) described how the development of constitutionalism could be achieved in the People’s Republic of China (“PRC”, or China),1 Liebman (2007) dealt with China’s courts’ restricted reform,2 and Peerenboom (2008) discussed “more law, less courts” and dejudicialisation in China.3 Recently both Zhang Qianfan (2010)4 and Chen Jianfu (2011)5 critically treated the issue of popular constitutionalism, and Kellogg (2011) systematically discussed the constitution in China’s courtroom,6 and Zhu Guobin (2010) speci! cally assessed the system of constitutional review and the dif! culty in realising it.7 It is worth noting Backer’s (2010) proposal to institute a constitutional court within the Chinese Communist Party (“CCP”)8 and Chen Xiaoping’s earlier observation (2006) of the dif! culty for rights advocacy or “cause lawyering”.9 Together they have greatly contributed to the scholarship on the subject matters. Different from the above publications, the focus of this article is speci! cally placed on the realisation of constitutional rights in and by the courts of various levels, particularly local courts, in China. Like many other constitutions, as we can observe, the current Chinese Constitution 1982 enumerates a list of fundamental rights that citizens can enjoy. Chapter II of the Constitution, entitled “The Fundamental Rights 1 Cai Dingjian, “The Development of Constitutionalism in the Transition of Chinese Society” (2005–2006) 19 Colum. J. Asian L. 1, 1–29. 2 Benjamin L. Liebman, “China’s Courts: Restricted Reform” (2007–2008) 21 Colum. J. Asian L. 1, 1–44. 3 Randall Peerenboom, “More Law, Less Courts: Legalized Governance Judicialization and Dejudicialization in China” (8 September 2008). La Trobe Law School Legal Studies Research Paper No. 2008/10. available at http://ssrn.com/abstract=1265147 or http://dx.doi.org/10.2139/ ssrn.1265147 (visited 12 June 2013). 4 Zhang Jianfan, “A Constitution without Constitutionalism? The Paths of Constitutional Development in China” (2010) 8 Int. J Constitutional Law 4, 950–976. 5 Chen Jianfu, “Constitutional Judicialization and Popular Constitutionalism in China – Are We There Yet?” in Yu Guanghua (ed), The Development of the Chinese Legal System: Change and Challenges (London and New York: Routledge, 2011) 3–25. 6 Thomas E. Kellogg, “The Constitution in the Courtroom: Constitutional Development and Civil Litigation in China” in Margaret YK Woo & Mary E Gallagher (eds), Chinese Justice: Civil Dispute Resolution in Contemporary China (New York: CUP, 2011) 340–379. 7 Zhu Guobin, “Constitutional Review in China: An Unaccomplished Project or a Mirage?” (2009–2010) 43 Suffolk U. L. Rev.3 625–653. 8 Larry Catá Backer, “A Constitutional Court for China Within the Chinese Communist Party: Scienti! c Development and a Reconsideration of the Institutional Role of the CCP” (2009–2010) 43 Suffolk U. L. Rev. 3 593–624. 9 Chen Xiaoping, “The Dif! cult Road for Rights Advocacy: An Unpredictable Future for the Development of the Rule of Law in China” (2006–2007) 16 Transnat’l L. & Contemp. Probs 221–251. HHKLJ2-1KLJ2-1 __GuobinGuobin Zhu.inddZhu.indd 2 118/07/138/07/13 10:2610:26 AAMM Vol 43 Part 2 Assessing Constitutional Rights in PRC Courts 3 and Duties of Citizens”, looks like a Bill of Rights. The rights incorporated in the Constitution range from such civil and political rights as right to equality (art.33), right to vote and to stand for election (art.34), right to freedom of expression (art.35), freedom of religious belief (art.36), right of the person (art.37), right to personal dignity (art.38), inviolability of residence (art.39), freedom and privacy of correspondence (art.40), and right to criticise and make suggestions regarding any state organ and civil servants (art.41), to social, economic and cultural rights including right (and obligation) to work (art.42), right to rest (art.43), right to retirement (art.44), right to material assistance (art.45), right to receive education (art.46), and freedom to engage in scienti! c research, literary and artistic creation and other cultural pursuits (art.47). The 2004 Constitutional Amendment adds the phrase “The state respects and preserves human rights” to art.33 and marks a new page in rights protection in China. However, observing from outside, the image of the Chinese government has been a rights infringer. Indeed the violation of citizens’ constitutional rights and freedoms by the government and its of! cials and the unavailability of suf! cient judicial remedies have long been seriously criticised inside China as well as outside. It is commonly accepted that the realisation and guarantee of rights and freedoms is far from being satisfactory. Among many reasons that could be used to explain this defect, including belated legislation, poor implementation of law, de! ance of law by state organs and civil servants, and ever increasing institutional corruption, the lack of effective implementation of rights and freedoms by and in the courts is probably the central one. The thesis of “taking the Constitution away from the courts”10 for the purpose of ! ghting judicial supremacy has certainly no correlation with the Chinese actuality and the “counter-majoritarian dif! culty” (maybe the best known problem in American constitutional theory)11 is not an appropriate doctrine to describe the Chinese situation, simply because the Chinese courts have been theoretically, and practically (since 2008), prohibited from applying the Constitution in the courts. To most of the scholars of law and to the state institutions, the Chinese constitution has, or should have, no direct effect in judicial proceedings; in other word, the courts cannot invoke the 10 Mark Tushnet, Taking the Constitution away from the Courts (Princeton, New Jersey: Princeton University Press, 1999). 11 The counter-majoritarian dif! culty basically states a problem pointing at the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. The phrase is attributed to Alexander Bickel who is said to have introduced it in his remarkable work The Least Dangerous Branch (Indianapolis: Bobbs-Merrill Educational Publishing, 1962). A Chinese translation was published by Peking University Press, Peking, 2007. HHKLJ2-1KLJ2-1 __GuobinGuobin Zhu.inddZhu.indd 3 118/07/138/07/13 10:2610:26 AAMM 4 Guobin Zhu (2013) HKLJ constitutional clauses in adjudicating cases, and the parties concerned cannot directly claim their constitutional rights in the courts. Interestingly, since the late 1980s, the Chinese courts (primarily
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