Possibilities for Constitutional Enforcement: How Compensation Cases Clarify the Role of the Chinese Constitution

The Chinese Constitution occupies a precarious position in the Chinese legal system. Though it is regarded as the supreme legal authority, it is not judicialized, meaning that its articles are not allowed to be used as legal basis in court. [1] In recent years, Chinese President Xi JinPing’s judicial reforms have only raised further questions about the role of the Constitution. While Xi has advocated for increased enforcement of the Constitution and of law-based governance, he has also emphasized that the rule of law cannot threaten the rule of the Chinese Communist Party (CCP). [2] As the CCP has a history of violating the Constitution, it is unclear to what extent Constitutional enforcement is possible without facing substantial party opposition. [3] However, cases concerning the constitutional right to work offer scenarios where such enforcement is not only possible but politically realistic. In these cases, the court invoked the Constitution to clarify ambiguities in legislation for the protection of workers’ rights, interpreting the articles in a manner that supported the CCP’s goals instead of bearing threats to their regime. [4] These cases show that the Constitution holds untapped legal potential to safeguard against gaps in legislation, and that furthering its implementation judicially can be consistent with Xi’s vision of enforcing the rule of law while maintaining political power. 

In China’s civil law system, judges rely on sets of extensive laws and codes, not precedent, to make judgments. [5] The scope of these laws presents a major obstacle to judicializing the Constitution: as some pieces of legislation mimic the language of the Constitution, they may render the invocation of the Constitution to be unnecessary. In China’s first case ruled on the basis of the Constitution, Qi Yuling v. Chen Xiaoqi, Qi sued Chen for identity theft and for violating her constitutional right to education after Chen pretended to be Qi and attended college in Qi’s place. [6] The Chinese Supreme Court ruled in Qi’s favor on both claims, explicitly mentioning that her constitutional right has been violated. [7] However, though some hailed the case as a breakthrough in the judicialization of the Constitution, others noted that the invocation of Constitutional rights had been unnecessary, highlighting the Constitution’s superfluousness rather than its significance. In Qi’s case, her constitutional right to education was also enumerated in the Educational Law, thus indicating that her right to education could have been defended without invoking the Constitution. [8] In 2008, the decision was revoked without explanation, and in 2009, the Supreme Court specified a set of legislation that could be cited in judicial decisions, which did not include the Constitution, further discouraging efforts to judicialize the Constitution in China. [9] 

Other attempts to use the Constitution may fail due to the threats they pose to the CCP.  In the Chinese judicial system, citizens can submit proposals to the National People’s Congress Standing Committee (NPCSC) to review the constitutionality of legislation, though this process’ effectiveness continues to be questioned. [10] Activists have submitted review proposals for the Custody & Repatriation (C&R) program and the Custody & Education (C&E) program, which authorize police to detain vagrants and sex workers without due process. Both programs were said to have violated Article 37 of the Constitution, which specified that no citizen can be arrested without legal supervision. [11] While both programs were ultimately repealed, the NPCSC did not repeal them on the basis of their unconstitutionality. [12] Legal scholars suggest that, in both repeals, the Constitution was not discussed because doing so might challenge the other extralegal ways the CCP maintains authority. [13] Ruling C&R and C&E programs as unconstitutional could open up vast legal challenges to various other government programs used to detain political dissidents, endangering the ways in which the CCP eliminates competition. [14] Despite the clear unconstitutionality of CCP programs, the C&R and C&E cases show that using Constitutional rights as a form of legal challenge against legislation is highly improbable under China’s current political climate. Simply put, creating precedent for using the Constitution in legal challenges would threaten other government programs tied to the CCP’s political power. As Xi has explicitly specified that the interests of the CCP stand above the law, any similar judicial challenges that could compromise CCP power would likely face significant government pushback. [15]

The Qi v. Chen case and C&R and C&E repeals thus define the two major obstacles relevant to strengthening the role of the Constitution within the legal system. First, published laws often mimic the language of the Constitution, rendering many of its enumerated articles unnecessary in court. [16] Further, even when Constitutional articles can play a major role in changing legislation, their power is limited due to the Chinese political system. If there exists a path for future Constitutional enforcement, then the Constitution must show itself to be indispensable in protecting certain rights and must not infringe upon the power of the CCP.  In 2015, a series of cases regarding Article 42 of the Constitution—which grants citizens the right to work—achieved both requirements, suggesting new possibilities for Constitutional enforcement. [17]

While unsuccessful attempts to invoke the Constitution have either aimed to reinforce individual rights already stated in legislation or to challenge established government procedures, the 2015 cases instead used the document to clarify legislative gaps. In Zhao LianHai v. Gao FuWen, Gao FuWen injured plaintiff Zhao LianHai in a motorcycle accident, causing Zhao to be unable to report to his job for a period of time and losing the corresponding amount of money he would have otherwise earned. [18] The Intermediate People’s Court of Langfang City initially ruled that, due to Article 119 of Civil Law, Gao would have to compensate for Zhao’s lost salary during that time period. As Gao’s vehicle was insured, Gao’s insurance company was responsible for payment. [19] The company appealed the decision, arguing that Zhao was aged sixty-three at the time of the incident and, thus, exceeded the mandated retirement age of sixty in China. As Zhao’s age required his retirement from the workforce, the insurance company questioned whether Zhao could still be classified as a worker and, subsequently, if the legislation that mandated compensation for work still applied to him. [20]

The company’s appeal revealed an area of ambiguity in relevant legislation. Civil Law and judicial interpretations surrounding compensation for loss of salary did not specify whether this compensation applied after retirement age. [21] Chinese Labor Law also proved inconclusive: while Article 3 of the Chinese Labor Law protected the right to remuneration for laborers, Article 2 of the Labor Law also stipulated that the articles applied only to “laborers.” [22] That did not resolve the central question over whether Zhao qualified as a laborer. Ultimately, the court decided that since Article 42 of the Constitution granted all citizens the right to work, Zhao still qualified as a worker and was entitled to his compensation. [23] In many subsequent cases surrounding compensation for loss of salary, the court also invoked the Constitution to protect the right to work—not only for those who exceeded the retirement age but also for those with physical disabilities and various other unique scenarios. [24] Given that the Intermediate People’s Court of Langfang City explicitly cited the Constitution in these decisions, it violated the Supreme Court’s 2009 regulation. Yet, the court’s decisions are also consistent with opinions expressed in The People’s Judicature, the official publication of the Supreme Court, which published an article in 2012 arguing that workers’ loss of salary compensation should be upheld even after they reach the retirement age. [25] Thus, these supposed transgressions had in fact led to a more appropriate implementation of the law. In these cases, existing legislation had limitations in its scope and in authority; it was unclear whether or not the scope of laws mandating compensation applied beyond the retirement age or if laws against exceeding the retirement age held authority to nullify mandates for compensation. With its broader scope and superior authority, the Constitution was able to resolve these ambiguities, acting as a safety net when existing laws failed to cover complex scenarios.

Not only do such interpretations of the Constitution benefit citizens, but they also contribute to the CCP’s stated goals. The CCP has always presented themselves as the party that protects the working class, with Xi being no exception. [26] Thus, ensuring the just compensation of all workers and preventing insurance companies from taking advantage of loopholes in the law is aligned with the image of itself the CCP hopes to project. Unlike the C&R and C&E challenges, these loss of salary cases reveal that not all forms of constitutional enforcement have to threaten the CCP. Thus, these cases indicate that there is room to expand the use of the Constitution in a way that both benefits individual citizens and does not provoke the party. 

The application of the Constitution in this manner shows that further Constitutional enforcement is both politically plausible and critical for Chinese citizens. If Xi is truly dedicated to his mission of Constitutional enforcement, he must consider allowing the Constitution to perform its crucial role in clarifying legislation to maintain citizens’ rights. With China’s rapid digitization, the Constitution can prove especially useful in resolving legal ambiguities in the cyber sphere. As more Chinese firms begin conducting their work online, some employers have adopted invasive employee cyber-monitoring practices. [27] Unable to catch up to these evolving corporate practices, existing legislation—including data regulations and the Privacy Law—fails to place controls on such monitoring. [28] Yet, Article 40 of the Chinese Constitution clearly entitles all citizens privacy of correspondence with the exception of cases involving national security and criminal investigation. [29] Thus, if it can be used in court, the Constitution would protect employees from exploitative labor measures that existing laws fail to account for. As China develops, further ambiguous legal situations such as employee monitoring may arise, necessitating the Constitution as a defense for citizens’ rights when laws fail to catch up. The use of the Constitution in these scenarios is a viable new path for Constitutional enforcement and should be central to Xi’s judicial reform. 

Edited by Animesh Joshi

Sources: 

[1] Xianfa pmbl. (1982) (China); Daniel Sprick, "Judicialization of the Chinese Constitution Revisited: Empirical Evidence from Court Data," 19 China Review, 45, (2019).

[2] Paul Gewirtz, “Constitutional Enforcement: Who Should Do It and How?” 4 China Law Review, 1, (2015); Xinhua, Xi Focus: Xi Jinping Thought on the Rule of Law guides law-based governance in China, XinhuaNet (2020), online at http://www.xinhuanet.com/english/2020-12/10/c_139578646.htm (visited July 17, 2021).

[3] Joanna Chiu, China’s Constitutional Crisis, The Atlantic (2013), online at https://www.theatlantic.com/china/archive/2013/09/chinas-constitutional-crisis/279285/

(visited August 13th, 2021). 

[4] Sprick, “Judicialization,” 56.

[5] CJO Staff Contributors Team, Does China Have Common Law? China Justice Observer (2020), online at https://www.chinajusticeobserver.com/a/does-china-have-common-law (visited August 13th, 2021).

[6] Qi Yuling v. Chen Xiaoqi (Chinese Supreme Court 2002).

[7] Sprick, “Judicialization,” 56.

[8] Robert Morris, “China’s Marbury: Qi Yuling v. Chen Xiaoqi – The Once and Future Trial of Both Education & Constitutionalization, ” 2 Tsinghua China Law Review, 282, (2010). 

[9] Sprick, “Judicialization,” 44-45.

[10] Sprick, “Judicialization,” 43. 

[11] Zhu Zhengfu, “Call for Constitutional Review of Custody and Education,” DuiHua Human Rights Journal, (2018); Qianfan Zhang, “A constitution without constitutionalism? The paths of constitutional development in China,” 8 International Journal of Constitutional Law, 965, (2010). 

[12] Id; Xinhua, China abolishes “custody and education” system, XinhuaNet (2019), online at http://www.xinhuanet.com/english/2019-12/28/c_138663621.htm (visited July 17, 2021).

[13] Zhang, “A constitution,” 970; Keith Hand, "Citizens Engage the Constitution: The Sun Zhigang Incident and Constitutional Review Proposals in the People’s Republic of China,” introduction to Building Constitutionalism in China, The Sciences Po Series in International Relations and Political Economy, 234 (2009).

[14] Bill Birtles, China's secretive 'residential surveillance' jail system is booming under Xi Jinping, human rights group says, ABC News (2021), online at https://www.abc.net.au/news/2021-06-23/chinas-network-of-secretive-prisons-booming-under-xi-jingping/100216432 (visited July 17, 2021).

[15] Xinhua, Xi Focus: Xi Jinping.

[16] Morris, “China’s Marbury,” 279.

[17] Xianfa art. 12 (1982) (China).

[18] Zhao LianHiai v. Gao FuWen (Langfang City Interm. People’s Court, 2015).

[19] Id. 

[20] Id; Sprick, “Judicialization.” 56 

[21] Id.

[22] LaoDong Fa [Labor Law] art. 3 (promulgated by the Standing Comm., Jul. 05, 1994, 

effective Jan. 01, 1995), CLI.1.9857(EN) (Lawinfochina); LaoDong Fa [Labor Law] art. 2.

[23]  Zhao LianHiai v. Gao FuWen (Langfang City Interm. People’s Court, 2015).

[24] Sprick, “Judicialization,” 57.

[25] Meng Chan, “Guanyu wugongfei peichang de ji ge wenti” [On several issues of the compensation for the loss of salary], Renmin sifa [People’s Judicature], 11 (2010).

[26] Hu Ping, “Pinglun | Hu Ping:  XiJinPing peng hongqi” [Opinion | Hu Ping: Xi JinPing spraying Red Paint], Radio Free Asia (2021), online at https://www.rfa.org/mandarin/pinglun/huping/hp-07012021144640.html. (visited July 26, 2021).

[27] Nikki Sun, China's Tech Workers Pushed to Limits by Surveillance Software, Nikkei Asia (2021) online at  https://asia.nikkei.com/Spotlight/The-Big-Story/China-s-tech-workers-pushed-to-limits-by-surveillance-software (visited July 26, 2021); Mimi Zou, “Rethinking Online Privacy in the Chinese Workplace: Employee Dismissals over Social Media Posts,” Made in China Journal, (2018). 

[28] Erex Chen,  Employee Email Monitoring Is Legal in China?, Mondaq (2017), online at https://www.mondaq.com/china/employee-rights-labour-relations/659692/employee-email-monitoring-is-legal-in-china. (visited July 26, 2021). 

[29] Xianfa art. 40 (1982) (China).