Citizens Engage the Constitution: The Sun Zhigang Incident and Constitutional Review Proposals in the People's Republic of China
Keith J. Hand
University of California Hastings College of the Law
BUILDING CONSTITUTIONALISM IN CHINA, pp. 221-242, Stephanie Balme and Michael Dowdle, eds., 2009
Shortly after assuming leadership of the Chinese Communist Party (the CCP) in the fall of 2002, Hu Jintao proclaimed that China’s “broad masses” should view the Constitution as a “legal weapon for safeguarding citizen rights” (Zhongguo xinwen wang 2002). In recent years, citizen activists have tested the limits of this rhetoric by advancing constitutional claims in different legal fora. Some of these efforts have focused on the people’s courts. Other citizens have focused on an alternative legal mechanism that the government has explicitly recognized as a legitimate forum for constitutional complaints: the constitutional review procedure established under Article 90(2) of China’s Law on Legislation (Zhonghua Renmin Gongheguo Lifa Fa 2000). This provision grants Chinese citizens the right to propose ( jianyi ) that the National People’s Congress Standing Committee (NPCSC) review administrative regulations and local laws that they deem to be inconsistent with national law or the Constitution. (This citizen proposal right should be contrasted with the right granted to state organs such as the State Council, the Supreme People’s Procuratorate, and provincial people congresses in Article 90(1) of the same law to demand (yaoqiu ) NPCSC review of such legal conflicts.) Subsequent National People’s Congress (NPC) procedures.
Since 2003, a growing number of citizens have taken advantage of this Legislation Law mechanism to advance constitutional claims. The defining event in these efforts took place in the spring of that year, when legal reformers leveraged public outrage over the death of a young man in police custody and filed a proposal with the NPCSC challenging a form of administrative detention called “custody and repatriation” (C&R). This citizen challenge generated widespread discussion of constitutional enforcement and inspired numerous subsequent constitutional claims. Whereas only a few proposals had been filed under Article 90 prior to the Sun Zhigang incident, citizens have since sent the NPCSC at least thirty-six requests for constitutional and legislative review on topics ranging from reeducation through labor and Internet content rules to employment discrimination and injury compensation standards.
This chapter examines the constitutional dynamics of the Sun Zhigang incident and four subsequent constitutional review proposals. An examination of these citizen proposals suggests that although the Legislation Law review mechanism has numerous deficiencies as a legal process, citizen constitutional claims are promoting China’s legal and constitutional development in several respects. First, when there is a degree of policy flexibility on the part of the leadership on legal and policy reform issues, a carefully crafted constitutional Review Proposal can help focus public attention on an issue and push authorities to move related reforms forward. Second, by filing proposals and thereby occupying the limited space for constitutional review that the leadership has created, reformers can exert pressure on the party and government to make this existing space meaningful in practice and establish a foothold for expanding the scope of constitutional review in the future.
Keywords: China, Legislation Law, constitutional law, constitutional proposals, citizen activism, weiquan, constitutional review, Sun Zhigang, custody and repatriationAccepted Paper Series
Date posted: December 16, 2011 ; Last revised: November 13, 2012
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