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Editor: Donald C. Clarke
George Washington University Law School

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Sunday, January 17, 2010

Top ten constitutional events: more details

In response to a request from my friend Tom Ginsburg of the Comparative Constitutions blog, here's a list and a few sentences about the top ten events that I blogged about yesterday (at least, in the view of the Procuratorial Daily):

1. The person in Chengdu who committed suicide by self-immolation to protest the forcible tearing-down of her home. This crystallized a lot of discontent of land requisitioning for redevelopment. I won't say "takings of property" because in many cases it's not clear how exactly we should characterize the interests that are being taken. In this case, for example, it may be that the structure in question was built without proper permission, and that knocking it down was no more than would have happened in any jurisdiction that enforces its urban planning laws. But as with the Deng Yujiao case, what actually happened is of less interest to a lot of people than the symbolic use to which an event can be put. The constitutional-type issues associated with this case are those of takings, proper compensation and procedure, etc., even though they may not actually have had much relevance to this particular case.

2. The Yunnan hide-and-seek case. A prisoner was beaten to death in jail; the police explained his head injuries by saying he had accidentally run into a wall while playing a Chinese version of hide-and-seek (it involves being blindfolded). When this explanation came out, it was appropriately ridiculed and popular pressure led to a second investigation. The constitutional-type issues are those of transparency, accountability, etc.

3. The Shanxi coal mine nationalization case. The Shanxi provincial government required privately operated mines to be taken over by state-owned firms. Ostensibly this was in response to bad practices in the privately operated mines. Maybe. Commentators have suggested that these problems could be dealt with through regulation. Again, maybe. The mine owners are fighting for compensation. The matter is still unsettled and politically very sensitive; hence its removal from the "top ten" list after publication.

4.The Shanghai "law enforcement by fishing" case. This case involved entrapment - in fact, outright framing - by Shanghai law enforcement authorities. In one example of what was apparently a pattern, a driver was flagged down by someone who appeared to be injured and wanted to be driven somewhere (I forget the exact details). The man offered money, but the driver didn't take it. A few minutes later, the car was surrounded by other cars with officials from the bureau in charge of overseeing taxis, who charged him with operating an illegal taxi service. He was forced to pay a fine of 10,000 yuan. Outraged at his treatment and unable to get justice, the driver ultimately cut off one little finger to show his innocence. That got attention, and a subsequent investigation brought the malpractice to light. The case is a bit reminiscent of the Beijing Traffic Police practice of maximizing fines that I blogged about in 2005 (here and here), but of course vastly more egregious.

5.The Hebei "political test-gate" affair. A young woman in Hebei applied for admission to a military college. Part of the process involves getting the local police station to stamp a form indicating that you don' have political problems. The local police refused to do this for her, stating that it was because her parents had been detained for 15 days in 2007 for getting involved in a fight. The police later changed their story to say it was because they had never received the proper documents. I'm not sure what this case is supposed to show, and the commentary in the article doesn't really make it clear. I don't think anyone is suggesting the political tests for people in the organs of state coercion should  be abolished.

6. The Chongqing student who faked his ethnicity. A top scorer in the university entrance exam from Chongqing was rejected (after initial admission) by Beijing University on the grounds that he wasn't really of minority nationality (for which he would have been given extra points). Thirty-one test-takers were found to have done the same thing, and fifteen officials involved in the fraud were disciplined. The constitutional significance lies in the questions this case raised about equal treatment, affirmative action, etc.

7.Cession to Macau of mainland territory. Here's the story that I find most amazing. China has carved out one square kilometer of Hengqin Island (contiguous to Macau) and leased it to Macau until 2049 for use as a campus of the University of Macau. The remarkable thing is that this territory will be under the legal jurisdiction of Macau; in other words, PRC law - the Criminal Law, the State Secrets Law, etc. - will not apply there any more than it applies in Macau. You would think that declaring PRC law inapplicable over any part of PRC territory would be a pretty big deal - the kind of thing reserved constitutionally for the National People's Congress. But no - this was authorized by the NPC's Standing Committee. I may blog more about this later; to me, it's one more piece of evidence of the essentially advisory nature of the Constitution and its insignificance as a legal document (unless "legal" is defined very broadly).

8.Crackdown by the State Administration of Radio, Film, and Television on audio-visual web sites and web sites providing quick downloads of AV material (bit-torrent sites). The ostensible reason was to crack down on piracy and pornography. The issue seems to be that there was no individualized determination of violations. I haven't looked closely at this matter (and don't have time to do so right now), so don't take my word for it.

9. Jiangsu woman rejected for civil service post because she was an unwed mother. Because she had had a child out of wedlock, a woman failed to pass her test of political reliability and was not allowed to take a civil service post for which she otherwise qualified. She brought an administrative lawsuit against the local county Party organizational department that made the decision and against the local population/family planning bureau. Predictably, the court rejected the suit against the Party body because it's not a proper defendant in administrative litigation. It advised her to sue the government body in a different court. The commentary suggests that the decision to reject her was improper because it took into account moral views about her private life. It's not clear to me that this objection stands up legally, though. Rightly or wrongly, the political test takes into account lots of things that people have a lawful right to do in their private lives, and yet are considered inappropriate if in public office. Short of abolishing the political test, it's hard to argue that the testers can't impose their views about proper morals. Perhaps underlying the objections is something else: the idea that having a baby out of wedlock should not be considered evidence of bad morals.

10. Sichuan peasant deprived of villager status by village vote. A man in Sichuan was a factory worker but apparently had rural roots. In 1993, in line with policy, he gave up his factory job to his daughter and went back to his village. In 1998, he began receiving his pension (from the factory). In 2003, village land was requisitioned with compensation, and it came time to share out the spoils among the villagers. Saying, "Since when do villagers get pensions?" (which are reserved for urban workers), the other villagers voted in effect to deprive him of his villager status and therefore his entitlement to part of the compensation. He sued and won in the first instance and lost on appeal. After a protest by the procuracy, the provincial high court sent the case back for re-trial. It's now being heard by the Intermediate Court in Leshan; no result as yet. This is a case worth watching; it implicates very interesting issues.

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Thank you Don! As I say over at the comparative constitutions blog, this suggests the importance of non-judicial enforcement of the constitution. Constitutions are enforced in the routines and actions of public officials like prosecutors even if the document, as in the chinese case, is non-justiciable.

Posted by: Tom Ginsburg | Jan 17, 2010 1:38:31 PM

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