Resolving Constitutional Disputes in Contemporary China
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Resolving Constitutional Disputes in Contemporary China Keith Hand* Beginning in 1999, a series of events generated speculation that the Chinese Party-state might be prepared to breathe new life into the country’s long dormant constitution. In recent years, as the Party-state has strictly limited constitutional adjudication and moved aggressively to contain some citizen constitutional activism, this early speculation has turned to pessimism about China’s constitutional trajectory. Such pessimism obscures recognition of alternative or hybrid pathways for resolving constitutional disputes in China. Despite recent developments, Chinese citizens have continued to constitutionalize a broad range of political-legal disputes and advance constitutional arguments in a variety of forums. This article argues that by shifting focus from the individual legal to the collective political dimension of constitutional law, a dimension dominant in China’s transitional one-party state, we can better understand the significance of the constitution in China and identify patterns of bargaining, consultation, and mediation across a range of both intrastate and citizen-state constitutional disputes. Administrative reconciliation and “grand mediation,” dispute resolution models at the core of recent political-legal shifts in China, emphasize such consultative practices. This zone of convergence reveals a potential transitional path * Associate Professor of Law, University of California, Hastings College of the Law. Former Beijing Director and Senior Fellow, The China Law Center, Yale Law School (2005–2008) and Senior Counsel, U.S. Congressional-Executive Commission on China (2002–2005). The author thanks Donald Clarke, Michael Dowdle, Bruce Hand, Nicholas Howson, Hilary Josephs, Chimène Keitner, Tom Kellogg, Evan Lee, Benjamin Liebman, Lin Xifen, Carl Minzner, Randall Peerenboom, Zhang Qianfan, colleagues at the UC Hastings Junior Faculty Workshop, and members of the Chinalaw List for their thoughtful comments and feedback on drafts of the article. The author also thanks the editorial staff of the University of Pennsylvania East Asia Law Review for oustanding comments and editing and Nolan Shaw, Wang Jingzhi, and one unnamed student for their invaluable research assistance. The author bears all responsibility for the final product. 52 U. OF PENNSYLVANIA EAST ASIA LAW REVIEW [Vol. 7 for resolving constitutional disputes. Specifically, the Party-state could choose to adapt and apply the grand mediation model in the context of constitutional disputes. Grand mediation involves a multilevel, Party- state political consultation that preserves a limited but meaningful role for the judiciary. An adaptation of the grand mediation framework would provide an indigenous dispute resolution model for resolving constitutional disputes, regularizing informal constitutional dispute resolution practices, and bringing judges to the constitutional interpretation table. At the same time, it would take account of the realities of China’s current political environment. Chinese reformers could use such a mechanism (or existing informal dispute resolution practices) to advance their long-term goals of facilitating citizen-state consultation, reform concessions, and the diffusion of constitutional norms through the Chinese polity. I. INTRODUCTION .................................................................................. 53 II. AN OVERVIEW OF RECENT CONSTITUTIONAL LAW DEVELOPMENTS IN CHINA ................................................................................................... 59 III. THE COLLECTIVE POLITICAL DIMENSION OF CONSTITUTIONAL LAW IN CHINA’S ONE-PARTY STATE ................................................................ 76 A. The Dual Political-Legal Dimensions of Constitutional Law ..... 76 B. Obstacles to Formal Adjudication of Constitutional Disputes in China .................................................................................................... 82 C. Using the Constitution to Shape China’s Political Environment......................................................................................... 88 IV. BARGAINING, CONSULTATION, AND MEDIATION IN CONSTITUTIONAL DISPUTES ................................................................................................ 105 A. Intrastate Constitutional Disputes.............................................. 106 1. Legislative Conflicts ................................................................. 106 2. Conflicts Between People’s Congresses and the Courts .......... 109 B. The Sun Zhigang Incident.......................................................... 112 C. Constitutional Disputes Related to Property Rights .................. 115 D. Electoral Reform in Hong Kong................................................ 125 E. Additional Examples and Limitations........................................ 130 V. EMERGING DISPUTE RESOLUTION MODELS IN CHINA AND THEIR RELEVANCE TO CONSTITUTIONAL DISPUTES......................................... 132 A. China’s Mediation Drive ........................................................... 133 B. “Reconciliation” of Administrative Litigation Cases ................ 139 C. China’s Grand Mediation Mechanism....................................... 143 D. Grand Mediation as a Transitional Model for Resolving Constitutional Disputes ...................................................................... 147 VI. CONCLUSION.................................................................................... 159 2011] RESOLVING CONSTITUTIONAL DISPUTES IN CHINA 53 I. INTRODUCTION This article identifies patterns of bargaining, consultation and mediation in the resolution of constitutional disputes in the People’s Republic of China (“PRC”) and explores the possibility that an emerging dispute resolution framework called “grand mediation” could provide a transitional model for resolving such disputes. In recent years, a series of events has raised concerns that China has abandoned its stated commitment to rule in accordance with the law. Chinese leaders, in a pronounced shift from the 1990s and the early 2000s, have placed progressively heavier emphasis on popular opinion and the mediation of disputes, rather than judicial professionalism and formal adjudication according to law.1 Through a series of personnel changes and political campaigns, Chinese Communist Party (“CCP” or “Party”) leaders have focused on the role of legal institutions in safeguarding Party leadership. They have also made clear that law enforcement and judicial institutions must not mechanically apply the law and must consider social stability impacts and other extra-legal factors in resolving disputes.2 At the same time, in an effort to eliminate perceived threats to Party power, the Party- state 3 has suppressed rights lawyers, nascent non-governmental organizations, and citizen activists.4 In response to these developments, some commentators have observed that China has “turned against” or “abandoned” law.5 1 Carl Minzner, China’s Turn Against Law, 59 AM. J. COMP. L. 935, 938–39 (2011); Randall Peerenboom, More Law, Less Courts, in ADMINISTRATIVE LAW AND GOVERNANCE IN ASIA 175–76 (Tom Ginsburg & Albert Chen eds., 2008). 2 See Willy Lam, CCP Tightens Control over the Courts, 11.11 CHINA BRIEF (The Jamestown Found., Washington, D.C.), June 17, 2011, at 2, http://www.jamestown.org/uploads/media/cb_11_05.pdf; Willy Lam, The Politicisation of China’s Law-Enforcement and Judicial Apparatus, CHINA PERSPECTIVES, no. 2, 2009 [hereinafter Lam, Politicization], at 42–51; Minzner, supra note 1. 3 The PRC Constitution enshrines the leadership role of the Chinese Communist Party in China’s government. See generally XIANFA [PRC CONST.] [hereinafter XIANFA] pmbl. (LawInfoChina) (China). State institutions in China are integrated with the Party and subject to Party control. This article uses the term “Party-state” to refer generally to China’s institutions of governance. 4 See Joshua Rosenzweig, Op-Ed., China Abandons the Law, WALL ST. J., Mar. 24, 2011, http://online.wsj.com/article/SB10001424052748704425804576220102254442640.html; Patrick Kar-wai Poon, Exec. Sec’y of the China Human Rights Lawyers Concern Grp., Presentation at the 2011 Gwangju Asia Forum: Rights Defense Lawyers and the Rule of Law in China (May 16, 2011). 5 See, e.g., Minzner, supra note 1; Rosenzweig, supra note 4; Evan Osnos, Is China Giving Up on Western Rule of Law?, THE NEW YORKER BLOG (Mar. 2, 2011), http://www.newyorker.com/online/blogs/evanosnos/2011/03/is-china-giving-up-on- western-rule-of-law.html (asserting that Party-state officials have “mothballed previous attempts to improve Chinese courts as a site of conflict-resolution”); Jiang Ping, «Lüshi Wenzhai» 2009 Nian Nianhui Fayan: Zhongguo de Fazhi Chuzai Yige Da Daotui de Shiqi [Speech at the 2009 Meeting of Lawyers Digest: China’s Rule of Law Is in a Period of 54 U. OF PENNSYLVANIA EAST ASIA LAW REVIEW [Vol. 7 In the realm of constitutional law, the Party-state has strictly limited efforts to promote the development of constitutional adjudication mechanisms.6 Since the National People’s Congress (NPC) created a citizen right to offer proposals for review of the constitutionality of some legal provisions, the NPC Standing Committee has not issued any formal public rulings on citizen proposals and has done little to improve the opaque process for handling them. In an apparent attempt to curtail efforts to “judicialize” the PRC Constitution, the Supreme People’s Court formally