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From Administrative Rule of Law to Constitutionalism?The Cha

作者:张千帆   点击量:39389

From Administrative Rule of Law to Constitutionalism?
The Changing Perspectives of the Chinese Public Law
 
Qianfan Zhang*


* Professor of Law, Peking University.  Contact information: qfz@pku.edu.cn.
 
 
    The emphasis on legal protection of the citizens’ legitimate rights and interests against official infringements is a recent phenomenon.  Traditionally China was a state largely governed by rule of virtue (Dezhi) rather than rule of law; the power of the government, headed by the emperor, did not observe any limits as defined by law.  The prevention against the misuse of power was primarily not by means of legal obligations, but by (mainly Confucian) moral education and institutional checks and balances.  If a person’s interests were improperly infringed by an official action, he could complain and sought a political solution, yet judicial remedy was unknown.  The systematic protection against official violations was made available only recently.  Decisive progress was made in 1990, with the enactment of the Administrative Litigation Law (ALL), which allows a citizen to sue against the administrative organ for violation of his legal rights and interests.  Yet the scope of judicial review has been limited to “concrete” administrative adjudications, leaving a variety of “abstract” administrative acts free from any effective control.  Most important, the court is not empowered to interpret the Chinese Constitution and adjudicate accordingly.  The most recent judicial developments has made it possible to transcend these fundamental limits, and to even accomplish a transition from limited administrative rule of law toward true constitutionalism.
       Divided into several parts, this paper is a general survey of the recent progresses in the Chinese public law.  First, it provides a brief history of the Chinese ideas about rule of law, and explain the “balance theory” as a prevailing public law doctrine today.  Second, it focuses on the meaning of “law” (and thus of “legal interest” to be protected by the Constitution and the ALL) in the Chinese public law system, and discusses “laws” at different levels and their legal effects, as defined in the ALL and other major legislations.  Third, it traces the major legislative developments in administrative law in the recent two decades, points out their deficiencies, and then moves to the recent judicial developments.  The paper ends with a discussion on the latest case that arguably “judicializes” the Chinese Constitution and the future reforms that are necessary for more effective protection of the citizens’ rights.
 
I.     A Brief History
       Throughout its long history China has been properly known as “the administrative state”.  The earliest records available in history portrayed the ancient Chinese government as a paragon of oriental despotism which, even in its primitive form, heavily regulated the details of the people’s lives.[1]  Comparatively the free space for private individuals in dealing with their own affairs had always seemed to be severely limited, a fact attested by the prematurity of the civil law in sharp contrast to the highly developed criminal provisions in early China.  In such a legal culture the right of individual against government was a heresy never dreamed of by even the most liberal thinkers before the modern age.  Of course, this is not to say that the Chinese officials had been acting without any control.  To the contrary, they were kept in check by a variety of mechanisms, legal or otherwise.  Even the Emperor was not as free as commonly supposed: if he (a few times “she”) was above the law, he was still to be restrained by the morals and customs, in which he was supposed to be rigorously trained since his childhood.  All “checks and balances” were designed, however, to reciprocate strictly among the mandarin officials.  The officials were appointed from above rather than selected by the people below, and the official decisions could not be legally challenged.  Indeed, allowing someone to sue his “father-and-mother official” (fumu guan) would be just as unthinkable as allowing one to sue his own parents, a capital offence in the Confucian tradition.  Appealing a manifestly unjust treatment to the higher echelon of the official pyramid was occasionally possible, but the redress of grievance was relegated entirely to the benevolence and personal integrity (sometimes great moral courage) on the part of the examining official.  Litigation, in which the plaintiff is placed in an equal status as the defendant, was beyond the traditional Chinese imagination.
       Things might have been different during the last years of the last dynasty, when the Dowager (and earlier, her son, the Guangxu Emperor) was preparing constitutional reforms.  But the reforms failed as they usually do, and the revolution erupted, leading to a Nationalist government after years of wars and chaotic experiments with republican democracy.  The Continental (particularly the German and the French) legal system was the object for import and imitation, and preliminary progress had been achieved in establishing a mechanism of complaining against administrative decisions.  Unfortunately the national focus at the time was elsewhere; it was the era of wars, and wars, foreign or domestic, proved not propitious for rule of law, not least for rule of administrative law.  Soon after the Nationalists retreated from the mainland to Taiwan, its legal accomplishments were abolished by the new regime almost overnight.  Although the 1949 revolution broke the continuity of the Chinese tradition, the new regime has been operating in the shadow of history.[2]  The administration was ever growing under the plan economy; administrative law seemed to be forever in the limbo.  Rule of law was emphasized only after the holocaust of the Cultural Revolution, when human rights and dignity were trampled by both official and private violations.
       Things finally changed in the 1980s, following the initiation of market reform and opening.  Administrative litigations (xingzheng susong) were experimented as early as 1982, the same year as the most recent Constitution came into force.  In April 1989, despite the precarious political atmosphere, the National People’s Congress (NPC) passed the landmark Administrative Litigation Law, which took effect on October 1, 1990.  For the first time – at least in the history of the People’s Republic, the citizen is given the right to sue the government if his/her legal interest is harmed by a narrowly defined category of official actions.  In the following decade, administrative litigation became the rising star in the Chinese legal community (see Figure 1).  The legislative progress is accompanied (and in some sense predated) by a change in legal philosophy and general attitude toward the function of law.  The theory of administrative law continues to be improved; the practice, however unsatisfactory, has managed to trail behind.  Together they form the most stimulating area of the Chinese law.  Very lately, brave judicial decisions have extended the scope of review and made it possible, for the first time since the founding of the People’s Republic, to adjudicate directly on the basis of constitutional provisions.  Thus, within the span of a decade, the China has undertaken to not only establish a prototype administrative rule of law, albeit many defects and limitations, but also move toward constitutionalism -- the ultimate end of rule of law.
 
Figure 1 (Number of Administrative Cases) about here.
 
II.   Transition of the Models: From “Management” to “Balance”
       The cold war divided the world into two camps: east or west; China was destined to side with the Soviet Union and to be heavily influenced by its “management model” (guanli lun).  This came along naturally, since the two countries shared a long history of what Tocqueville would call administrative despotism.  The presupposition underlying the theory is the bifurcated assumption of human nature, also familiar to the Chinese cultural thinking dominated by Confucianism: there are two groups of men, one is virtuous, the other selfish; the virtuous is to govern, the selfish, be governed.  Simple as that, it hardly needs translation into modern language.  The state need be managed, and it is to be managed by a small group of elites, who possess both the knowledge for governing a mass society and the moral integrity that guarantees their knowledge not be misused.  The management process is to preclude any participation by the vast majority, who are viewed in fact (though not always so explicitly acknowledged) as either inept or morally inferior.  Nor would it be wise to lend them any control over the process; indeed, from this view, it would be absurd to allow the inferior to control the superior. 
       China accepted (or merely re-affirmed) this theory with the founding of the People’s Republic.  Although the Communist movement marked a sharp break with the past tradition, in this respect it found itself in comfortable agreement with the latter.  The old tradition and new ideology under the influence of its political ally joined together in making the management model prevail.  Its antagonist, the “power-control model” (kongquan lun), to the extent that it was understood at all, was scathingly criticized as the product of the reactionary “bourgeoisie” (American or British) thought.  As the state was controlled by the revolutionary vanguard, which could only work to the public good, it was superfluous to think of any mechanism for “control”.  Nor was the court supposed to play any independent role to burden the exercise of virtuous leadership.  Rather, it merely served as the “knife handle” (daobazi) for the “proletarian dictatorship”, and cut where it was directed.  Control over the administration, which was directly under the party leadership, was entirely an alien and heretical idea; “administrative law”, read conjunctively, was a new vocabulary yet to be created.
       The myth gradually crumbled by itself.  As China left ideological jargons behind and entered the era of economic reform, and made itself more open to the rest of the world, it became increasingly aware of the need for administrative law and legal control over bureaucracy.  The first textbook on administrative law appeared in 1983.[3]  After that, an array of treatises on that subject emerged.  The theories and practices of various foreign nations have been introduced as successful examples for ensuring administrative legality.[4]  By 1987, the legal scholars had established research priorities centered on the structure of administrative organization, the basic principles of administrative activities, and the management of civil servants.[5]  Since then the priority was shifted to the building of a theoretical framework proper to the nature of administrative law and within the limits of the socialist constitution.  The subjects under study included the nature of legal relationship in administrative law, the control and supervision of administrative acts, especially the exercise of discretion, the scope of judicial review, and the mechanisms of legal remedies.  These studies laid the theoretical foundation for the passing of the Administrative Litigation Law in 1989, which separated litigation procedure as a special subject from the general administrative jurisprudence.[6] 
More fundamentally, the basic presupposition of human behavior, which underlies the model of administrative law, begins to be revised.  It is of course difficult for China to accept the western theory as an intact package, yet the old theory is modified to fit new perceptions and the need for social development.  Gradually a compromise theory branded as “balance model” (pingheng lun) emerged and took over the prevailing position.[7]  As the name indicates, its essence is to balance the sometimes conflicting needs for administrative authority and legal rights and interests guaranteed to the citizens by law.  According to the “balance school”, the purpose of administrative litigation is to balance the inherently unbalanced relationship between the administrative power and private rights.  This theory was developed in a general atmosphere where individual and collective rights were receiving more attention in the Chinese legal community.  While total individualism is still not possible, at least rights gets on one side of the balance, and does play a role in guiding all major legislative efforts in administrative law.
 
III.  The Administrative Litigation Law
The ALL begins with a new philosophy, that is, the goal of administrative litigation is to achieve a balance between the individual rights and administrative power.  The idea is amply reflected in the General Principles (Chapter 1) of the ALL.  To achieve the balance, the Article 1 of the ALL provides that its goal is “to protect the lawful rights and interest of citizens, legal persons and other organizations, and to ensure and supervise that the administrative organs exercise their administrative functional powers (zhiquan) according to law”.  Although the meaning of the word “ensure” had been disputed by some scholars, it is generally agreed now that the most essential role of the ALL is not to guarantee the fulfillment of administrative functions without undue interferences (especially from other administrative organs or personal powers), but rather to guarantee judicial recourse to the citizens against official misconduct.  Article 2 provides that “any citizen, legal person or other organization considering that the concrete administrate act of an administrative organ or its employee violated his/her lawful right or interest is authorized by this law to bring litigation” to the court.  Article 7 further emphasizes the equal legal status of the parties in administrative litigation. 
The provision that most conspicuously reflect the influence of the balance theory is Article 32, which is widely thought to have “reversed” the burden of proof for administrative litigation: “The defendant shall have the burden of proof for the concrete administrative act, and shall provide the factual evidence and normative documents on which it relied in making the concrete administrative act.”  Article 33 further prohibits the defendant from collecting (as opposed to merely “supplementing”, buchong) evidences, on its own motion, from the plaintiff or witnesses during litigation.
Several major aspects of the ALL are discussed below.
 
1.    A New Administrative Court?
Consistent with the Constitution of 1982 and the Organic Law of the People’s Courts, a new division was created within the existing judicial structure to handle administrative cases.  In actual operation the structure of the Chinese courts resembles the German system of special jurisdictions.  In the recent past it used to be divided into five sections: Civil, Criminal, Economic, Transportation, and Administrative.[8]  Now the Economic Division has been merged into special sections in the Civil Division.  Apparently a “division” is different from a “court”, however, even though the practical distinction is not so clear except that the personnel of different divisions may be easily rearranged.  In any case one would never encounter the word “administrative court(s)” in the ALL or any other law.  At least in name the Chinese law recognizes only one “Court”, making it (misleadingly) similar to the American or British common law systems; in practice, the Chinese system has never adopted any court of general jurisdiction, and the Administrative Division is for all practical purposes an administrative court dealing with cases within the jurisdiction defined by the ALL. 
       Vertically, the Chinese courts are divided in four levels: the national Supreme People’s Court (SPC), the High Courts located in the municipalities (zhixia shi)[9] and in the capitals of provinces and autonomous districts (zizhi qu), the middle-level (zhongji) courts in the cities, and the basic-level (jiceng) courts in the counties and city districts.  Usually the trial process is undertaken in the basic-level court (ALL Art. 13), but the higher courts are responsible for trying the “significant” (zhongda) and “complex” (fuza) cases within their respective jurisdictions (Art. 14-16).[10]  Further, the Administrative Divisions of the middle-level courts are responsible for trying cases involving custom matters and the identification of patents, as well as cases in which the defendant is a department or commission of the State Council, or the government of a province, autonomous district or municipality (Art. 14).  The decision of the trial court (except, of course, that of the SPC) can be appealed to the same division in its upper court, where the process of judicial review normally ends.
Apparently imitating the Continental legal system, the Chinese judicial decisions do not have the force of “precedents” as they do in the common law system, and the lack of “case law” might have undermined the uniformity and certainty of judicial interpretations of the laws.  A lower court in China is subject to the mechanism of “dual control”: on the one hand, it is responsive to the People’s Congress in its geographical jurisdiction, and its budget is subject to the control of the administrative authority; on the other hand, it is in principle subordinate to the higher courts.  As the dual system exacerbated the problem of local protectionism and judicial dependence, the undergoing judicial reform has made some effort to streamline the court structure and to enhance the central leadership.  The SPC, composed of over 250 judges divided into special jurisdictions, is the highest court with the authority to review the cases appealed from below.  In reality it rarely decides concrete cases.  Its main function has been to issue judicial “explanations” (jieshi) of statutes and a variety of advisory opinions of general applicability to the lower courts.  Its bimonthly publication, The SPC Gazette, does contain exemplary decisions made mainly by the lower courts.  The legal effect of these decisions remains unclear, however.  Apparently, they are edited approvingly by the nation’s highest court, and serve as positive examples for deciding cases in the corresponding areas of law.  Still, since these decisions are not “precedents” in any sense, the lower courts are not obligated by law to follow (or even to be aware of) them.
 
2.    Jurisdiction (Reviewability)
Apparent inconsistencies in the different provisions of the ALL have caused some disputes as to the exact scope of jurisdiction (shou’an fanwei) conferred to the courts.  A literal reading of Article 2 seems to suggest that the violation of any “lawful right or interest” by a concrete administrative act can possibly serve as the basis for initiating an action against the offending administration.  Yet Article 11 imposes specific restrictions by listing seven categories of administrative acts that a citizen may bring to the court,[11] ending with a catch-all clause that grants the right to those who thinks that the administrative organ violated “other personal and property rights”.  Article 12 further excludes four types of actions from litigation, including “state actions”, such as actions committed for the purpose or in the course of national defense and diplomacy, administrative legislation or any administrative “decision and order with general binding force”, all “internal” decisions made by an administrative organ with respect to its employees, and administrative adjudications that is defined by law as “final” (zhongji). 
According to the prevailing understanding of the Chinese legal community, Articles 11 and 12 work in conjunction to limit the jurisdiction of administrative litigations.  In essence the ALL defines jurisdiction by the model of enumeration.  While Article 11 enumerates the specific areas of administrative acts reviewable by the courts, Article 12 further takes away certain areas of acts from judicial review. [12]  The language of Article 11 itself indicates that the jurisdiction of administrative divisions is narrower than the literal reading of Article 2, which merely declares a guiding principle for the court in handling administrative litigations.  Only “personal and property rights” – not every “lawful rights and interests” -- invaded by an administrative organ may serve as the basis for administrative litigation. 
In a few recent cases, however, the courts are apparently willing to extend the jurisdiction to cover “the right to receive education” (shou jiaoyü quan),[13] which does not fit easily with either “personal” or “property” rights.  It is true that the Administrative Reconsideration Law (ARL) promulgated in 1999 does provide that the violation of such a right to education can serve as basis for bringing administrative process of “reconsideration” (fuyi), which is essentially an appeal within the administrative organ.  Yet it is surely a different law, and the courts are not warranted – at least not obligated – to “adapt” the meaning of Article 11, absent explicit change in the statutory language, to that of the ARL in order to make their jurisdictional requirements “consistent”.
 
3.    Administrative Acts: “Concrete” versus “Abstract”
       The question of jurisdiction is important since, as in the German and the French systems, a case must be rejected if it is brought to a “wrong” court in China.  In deciding whether a case can be treated as an administrative litigation, a number of “lines” must be drawn.  The action challenged against must be “administrative” rather than “civil” in nature, and must not be a measure taken in the course of criminal investigations.  These distinctions sometimes do cause problems for border-line cases, yet the most perplexing distinction is the one made between “concrete” (juti) as opposed to “abstract” (chouxiang) administrative acts.  The ALL (Arts. 11 and 12) makes it clear, and this is one of its few peculiar “Chinese characters”, that only the former type of acts can be litigated.  The Chinese court is simply not authorized to pass on the legality of any administrative act of general applicability, even one of the lowest order in the normative hierarchy (more below). 
       The distinction between the “concrete” and “abstract” has caused a great deal of confusion and disputes among the theorists and practitioners alike.  Trying to clarify the distinction, the SPC issued an “explanation” about the “concrete” acts; finding its less than helpful, it then issued another judicial explanation, defining an “abstract” act as “an administrative normative document that is not aimed at any particular objects and is capable of repeated application”.[14]  It is unlikely that the latter explanation will offer much help to the judges in determining whether s/he should reject the case because the act under challenge is “abstract” not “specific”.
 
4.  Scope of Review
Article 5 of the ALL explicitly limits the judicial review of concrete administrative acts to their legality.  As a rule (though exceptions do exist), a court is not supposed to make its independent judgment as to the reasonableness of administrative decisions and substitute them with its own.  As a result, the court’s jurisdiction is also limited in the sense that it usually can only either sustain a lawful act, or annul a concrete act found to be illegal and send the case back to the same administrative organ for a second decision if necessary; it is not supposed to modify the decision on its own motion.  Only if an administrative penalty is found to be “manifestly unjust” (xianshi gongzheng) can a court modify the degree of the penalty (Art. 54).  And this occurs rarely.
       There are four types of reasons by which a court can rescind an administrative act.  Article 54 provides that the court can annul or partly annul a concrete administrate act if the main evidence based on which the act was made is found insufficient, if there is an error in applying the statutes, if the act violated legally prescribed procedures, if act was beyond the competence (chaoyue zhiquan) of the administrative organ concerned, or if there was abuse of power (lanyong zhiquan).  It further provides that the court can order the defendant to fulfill its legal duty in case it failed to do so either by refusal or undue delay.
 
5.    What are the “laws” for reviewing administrative legality?
       In the current hierarchy of legal norms, the Constitution theoretically occupies the highest place, yet according to a peculiar judicial interpretation made in 1954, which remains applicable today, the constitutional provisions alone cannot serve as the basis for judicial decisions.  Put frankly, if a certain right (e.g. the right to free speech) is guaranteed in the Constitution but not in any statute, it can be violated by the government without any judicial recourse (but see Part VI below).  Since, until very recently, the Constitution was not legally enforceable, it was not a “law” in the complete sense.  Thus the Chinese confront the dilemma that the Constitution is supposed to be the “most essential law” (genben dafa), yet it is not a “law” in its ordinary sense.  The making of the ALL did not and could not change this fact.  Only the recent judicial decision, to which we shall return at the end, offers some hope to change this paradoxical picture.
       The next in the hierarchy comes the statutes, which do have the binding power.  Broadly understood, the term contains three different types of legal norms.  The highest among these, the laws (falü), are made by the NPC or its Standing Committee.[15]  The next is administrative legislations (xingzheng fagui), ordinances that are made by the State Council.  Lowest of the three is the local legislations (difangxing fagui), which are made by the People’s Congresses of the provinces, autonomous districts, municipalities, and “relatively large cities” (jiaoda shi) as approved by the State Council.  By their nature, national laws and administrative legislations bind the courts nation-wide, while local legislations bind the courts in their respective jurisdictions.  According to Article 52 of the ALL, all statutes are to be treated as the legal “basis” (yijü) of judicial decisions.  The judges obviously have no power to review these statutes, and it is not clear what they should do in case a conflict among them arises.  The Legislation Law (Lifa Fa), which just came into force in 2000, leaves the resolution of legal conflicts to the NPC or its Standing Committee, the State Council, and the other legislative organs, without even referring to the court, and it is hard to predict the efficacy of the complex review mechanism absent judicial intervention at any stage.  So it is at least possible that a judge may find a national law and a administrative legislation both applicable to a case, dictating opposite results.  Both principle and common sense would demand that s/he should give effect to the higher norm – the law, but in the Chinese legal system a judge, who lacks the authority to examine the legality of any “abstract” administrative act, is not explicitly required to do so.
       Further down in the hierarchy of law, while still widely recognized as a part of “law”, is the “regulations” (guizhang) made by either the departments or commissions (buwei) of the State Council or by the People’s Governments (renmin zhengfu) of the above mentioned localities.  The legal effect of these regulations is somewhat uncertain, since Article 53 of the ALL provides that the courts shall decide administrative cases only “in reference to” (canzhao) them, and a literal reading of the provision would suggest that it is in the judge’s discretion whether to give them any legal effect or not.  Again, principle of good practice would require that the judge should treat a regulation as binding if and only if it is not contradictory to any higher norms -- the statutes.  Yet, at least in the current situation, this is not an explicit legal requirement, and it is up to the judges to figure out what “reference” really means in deciding cases.  The ALL only provides that, when different regulations conflict, the court should petition, via the SPC, the State Council to provide an explanation or adjudication (Art. 53).
       Last but by no means the least (since they are the most numerous), below the level of regulations there is a large category of “normative documents” (guifanxing wenjian), including but not limited to orders, decisions, notices, and instructions of general applicability made by a variety of government units at all levels, which constitutes the bulk of “abstract administrative acts”.  The legal status of these normative documents is not defined in the ALL, but it is generally agreed that they shall be treated to have the same legal force as whatever the regulations have; in other words, they should be “referred to” by the court in deciding cases.  Article 7 of the new ARL provides, for the first time, that the proper administrative organs may, in the course of examining a complaint against a concrete administrative act, review the legality of applicable “rules” (guiding) below the level of regulations.  Owning to the lack of a similar provision in the ALL, such review has never been made by the any court.  The court may choose to ignore a normative document s/he considers illegal, however, and if it is the only basis upon which a concrete administrative act is made, annul the act for lack of proper legal basis.  This is a tortuous and inefficient way of protecting the party’s legal interest – inefficient because an administrative organ might well commit a variety of acts based on the same illegal normative document, but the court can only annul those illegal acts individually, if they are brought to it at all.  It has also created the problem of inequality, since only those who come to the court and have the act rescinded would obtain the judicial recourse, those who do not – and they may very well constitute the vast majority in China – would simply miss the opportunity to such a benefit.  Still, the current way of resolving the problem is probably better than simply having the judiciary acquiesce in the legality of an illegal normative document.
 
IV.   Other Legislative Progresses
The 1990s is a blooming decade for the Chinese administrative law.  The ALL is but one major achievement, and would be quite incomplete without the supplement of other legislations.  Here we briefly mention several landmark legislations for the Chinese administrative law.
 
1. Administrative Reconsideration Law (ARL)
Unlike the American administrative system, which requires the party to “exhaust administrative remedies” before suing the agency, the ALL allows one to bring an administrative litigation directly, without having to go through the review process within the administrative organ, unless the law specifically provides otherwise.  Yet administrative “reconsideration” (fuyi) is still a potentially important device for citizens to protect their legal rights and interests.  In December 1990, the State Council issued the Ordinance for Administrative Reconsideration, which was amended in 1994.  The Ordinance was revised and approved by the NPC, and became law (the ARL) in 1999. 
       As explained above, the ARL is progressive in two aspects.  First, it allows a citizen to challenge relevant normative documents in a complaint against concrete administrative act considered to have violated his/her legal interest.  Thus, for the first time, the “red-tape” documents (hongtou wenjian) can be challenged for contradicting higher legal norms.[16]  Second, it broadens the categories of rights and interests the violation of which can be challenged in an administrative review.  Article 6 explicitly provides that the scope of review includes, among other things, the right to receive education in conjunction with personal and property rights, and ends with a catch-all clause that provides review for “other concrete administrative acts violating lawful rights and interests”, not limited, as in the case of ALL, to personal and property rights. 
       The ARL has some regressive features, however, in comparison to the previous Ordinance.  While the Ordinance explicitly provides that the review agency “exercises its function and power according to law, free from illegal interferences from other organs, social groups and individuals” (Art. 3).  This article was deleted in the ARL, apparently under the belief that administrative review is an internal process, where neutrality and independence of the review agency is not as essential as in judicial review.  Also deleted is Article 8 of the Ordinance, which provided that settlement (tiaojie) is not applicable to administrative review.  The same article is provided in Article 50 of the ALL for the judicial review of administrative actions, for reason that allowing settlements would encourage the powerful administrative organs to coerce the plaintiffs to withdraw litigations or to provide remedies inadequately favorable to the disciplined party (possibly after offering bribes) at the expense of the state interest.  This article is deleted in the ARL because it is somehow believed that the cautions against settlements are not necessary for administrative review to proceed properly.
 
2. Administrative Penalty Law (APL)
By all standards the APL passed in 1996 is a carefully drafted statute, taking into account both the need for administrative efficiency and the need for protecting the legal rights and interests.  Three features stand out most prominently.  First, it distinguishes six types of penalties by their nature, and explicitly empowers the certain types of legislations provide for particular kinds of penalties according to their severity.  Only laws may provide for administrative penalties limiting personal freedom (Art. 9), while administrative ordinances may provide for all other penalties (Art. 10), and local legislations may provide for penalties not involving limitation of personal freedom and revocation of permit for managing business (Art. 11).  All lower norms, including the administrative and local regulations, can make only detailed rules within the scope of behavior subject to penalties, and the types and range of penalties set by the higher norms (Art. 12).  These provisions serve as a model for similar provisions in the Legislation Law of 2000.
Second, Article 31 explicitly requires that, as a general principle, the administrative organ shall explain to the party the “fact, reason, and basis” for the administrative decision before the decision is actually made.  It further provides that the citizen has right to explain and argue in his favor (Art. 6), and such arguments shall not be taken as a factor for aggravating the penalties (Art. 32).  This provision explicitly renounces the long-standing practice in criminal law that had punished any effort to deny criminal charges.[17]  By requiring, for the first time, the explicit duty to provide explanation for administrative decisions, the APL helps to inculcate a more reasoning and less impervious bureaucracy in China.
       Third and related, to clearly reflect the consideration for balance between efficiency and justice, the APL provides for three types of different procedures tailored to the weight of penalties.  If a penalty is less than 50 RMB against a natural person or less than 1000 RMB against a legal person or an organization, then the “simple and easy” (jianyi) procedure applies, according to which the executive officer may issue the penalty on site, with an administrative penalty decision written on standard form (Arts. 33, 34).  Normally, “ordinary” (yiban) procedure is applicable.  Here the administrative organ is supposed to undertake a “comprehensive, objective, and just” investigation, and collect relevant evidence before entering a penalty decision (Art. 36).  The form recording the decision is required to contain a number of items, including “facts and evidences for violating the law, ordinances or regulations”, “the type and basis of administrative penalty”, and the ways to apply for administrative reconsideration or litigations as well as the respective deadlines for doing so (Art. 39).  A penalty decision cannot stand if it is made without explaining the legal basis of the penalty to the party or without listening to the party’s arguments and statements (Art. 41).  Last and most significant, the ARL explicitly provides – again for the first time -- the right to hearing: if a case involves an order to cease production and management, or revocation of permits or licenses, or a “relatively large amount” (jiaoda shu’e) of monetary penalty, then the citizen may demand the administration to give an opportunity for hearing before the decision is made (Art. 42).  The hearing is to be open and chaired by a person appointed by the administrative organ but not directly associated with the investigation of the same case.  Rudimentary as it is, the hearing procedure of the APL did break the Chinese record and marked a brand new take-off in this field.
 
3.  State Compensation Law (SCL)
Obviously administrative litigation would have been quite useless without providing due compensation for the legal interests improperly harmed by the administration.  Consistent with the Constitution of 1982, the ALL has already provided for such a right. According to Article 67, a citizen can either demand compensation along with the administrative litigation, where the legality of the administrative act is challenged, or bring a separate action for compensation if s/he has exhausted the administrative remedies and is still unsatisfied.  The compensation is to be paid by the administrative organ, which has the right to obtain redemption in part or in whole from the employee(s) who committed intentional wrong or gross negligence (Art. 68).
       The SCL passed in 1994 provides a more systematic framework for citizens obtaining compensation for harms and injuries suffered from the administrative activities or criminal investigation.  As in the case of the ALL, the compensation is limited to violations of personal and property rights (Arts. 3, 4), although Article 2, in defining the “General Principles” of state compensation, confers right to all those whose “lawful rights and interests are harmed” as a result of the “illegal exercise of functional powers” by the administrative organs.  The state is not responsible, however, for “personal acts irrelevant to the exercise of the functional powers” or harms caused by the party itself (Art. 5).
 
4.        The Legislation Law (Lifa Fa)
Although China is supposed to be a centralized state, its legal system is far from uniform.  If China before the 1980s lacked written laws, the two decades of the reform witnessed the enactment of many – perhaps too many – legislations at different levels of government and a plenty of conflicts among them.  The situation is aggravated by self-seeking behavior of bureaucrats fighting for jurisdiction, leading to the chaotic scene dubbed as “legislative fighting” (lifa dajia).  It would make rule of law impossible since there are too many “laws” applicable to the same case -- a problem, as we have seen, that the Chinese court is incompetent to handle.  To resolve the problem, the NPC passed the Legislation Law in 2000, widely viewed as “the law of laws” for reducing if not eliminating legislative fights.  It created several crafty mechanisms for resolving difficult legal conflicts (e.g. one between local legislations and administrative regulations), but its effectiveness remains to be seen, especially in a context without judicial assistance.
 
5.        Current Developments
The Chinese scholars and practitioners in administrative law are currently preparing to enact legislations for normalizing (guifan) administrative behavior in the course of taking coercive measures and making government procurement.  With regard to the latter several provinces and municipalities have already made their own local legislations or regulations, and it remains to be seen whether a uniform central legislation is necessary.  Scholars have also long debated the issue whether China should enact a uniform administrative procedure, as the United States did in 1946 and Germany in 1976.  Although the opposing side sees it as “ahead of its time”, the prevailing opinion seems to support its enactment.
Recently, to prepare China for entering the World Trade Organization, the legal community has discussed the impact of economic globalization on the domestic rule of law,[18] especially the development of administrative law and, more broadly, the reformation of administrative structure.  Some of the contributors criticized the pervasive permit system, especially the substantive review (shenpi) institution, as the source for arbitrary exercise of administrative discretion and a serious impediment to market economy.  It is likely that some of the permit and license systems will be abolished or modified to make the Chinese administrative system more acceptable to the rest of the world.  Joining the WTO may not have all of the direct benefits as many supposed, but it will serve as the impetus for some fundamental reforms of this traditional administrative state.
 
V.    Problems Unresolved
       The Chinese administrative law, while still in its teenage, has achieved phenomenal growth since the ALL first came into effect.  This is hard to gainsay by any standard.  Figure 1 shows clearly that the numbers of the cases received, decided and appealed have continued to rise over the years.  Although, by 1999, the administrative cases (less than 100,000) are still far behind the civil cases (3.5 million) and economic cases (over 1.5 million) in number, they are clearly rising at the highest rate.  In the decade between 1990-99, while the civil cases almost doubled in number, and the economic cases increased over 1.5 times, the administrative cases rose more than 7 times!  Even excluding the number of withdrawal, which has been unusually high for administrative litigation, the number of cases still rose by 6 times.  Mere numbers can be superficial, but they do seem to indicate that administrative litigation has made a good progress in China, and the citizens’ sense of defending their own rights by legal means has been continually enhancing.
       Achievements aside, the Chinese experience with administrative litigations does uncover many problems, some of which will be addressed in the remaining part of the paper.
 
1.        Why is it still so difficult to sue the Government?
Although the number of administrative litigation keeps rising, it is still extremely small compared to the number of administrative decisions made daily in this giant administrate state.  Only a tiny proportion of these decisions are objected and brought by citizens to the courts, and among them, a significant portion is “voluntarily” withdrawn (cheshu; see the large gap between the cases received and cases actually decided in Figure 1 and the rate of withdrawal in Figure 2).  The ALL has two provisions regarding withdrawal.  Article 48 provides that, if the plaintiff has been called twice but failed to appear on the court “without adequate reason”, then s/he will be “regarded as” (shiwei) applying for withdrawal.  Article 51 provides that, if the plaintiff voluntarily applies for withdrawal, the court need to examine whether the application should be permitted.  The purpose is to prevent the administrative organ from illegally pressing the plaintiff to withdraw the challenge and from entering illicit agreement with the plaintiff, thus allowing the latter to escape from the legally required punishment at the prejudice of public interest.  This is also consistent with the aim of Article 50, which prohibits settlement of administrative litigation.
 
Figure 2 (Administrative Trial Process) about here.
 
       Apparently these provisions are taken seriously only to a limited extent, and citizens still have a variety of reasons for choosing not to press the wrongdoers on the court.[19]  The most obvious reason is that the same wrongdoer will still be in charge of the disputed business, so that even if the citizen wins this time, s/he will very likely suffer from more covet discriminations in the future, and thus lose in the long run.  Many (in some areas, most) citizens are intimidated enough to withhold any complaint, not to mention litigation.  Even those having initiated the actions are likely to be persuaded to take the “wiser” alternative of quietly ending the contention.  The rate of withdrawal has always remained high and, in 1997, it reached the astounding 70%!  Since then the rate has apparently declined somewhat, but the problem that the citizens feel reluctant to sue their “father-and-mother officials” is most likely to remain for years to come.
 
2.    Narrow Jurisdiction and Scope of Review
       The other major reason why administrative cases are so few is that the court’s jurisdiction is too narrow.  The distinction between “concrete” and “abstract” administrative acts is made with the initial purpose to prevent a floodgate of administrative litigations.  In retrospect such a worry was entirely unnecessary.  It is a cautious provision for a ground-breaking legislation, to be sure, but it would be unfortunate to let it perpetuate without serving any good purpose, with the only effect of allowing illegal administrative acts to survive under the “abstract” clothes.[20]
       Another limitation comes from Articles 11 and 12 of the ALL, which restrict the cause of action to violations of “personal and property rights”.  As discussed above, the wording of Article 2 may afford a “self-expansion” of the ALL to cover violations of all “lawful rights and interests”.  Politically, it might be difficult at the current stage for the court to review, for example, challenges against the violation of one’s right to strike or to free speech.  Yet these rights might not cause problem immediately since many such rights are guaranteed only by the Constitution, but not specifically by any statutes, thus not part of “lawful rights”.  It is absurd, of course, to label a right “constitutional” but not “lawful”, yet the absurdity may have to be tolerated in the current system.
 
3.    An Independent Judiciary?
       Now, to the key problem: is the Chinese judiciary really independent enough to protect the citizens from administrative invasions?  The problem of judicial independence and fairness is important because, without judicial protection, even perfect laws would be useless.  And the problem is not limited to administrative litigation, but common to all areas of law, and to resolve it is the very aim of the undergoing judicial reform, a rich subject well worth separate treatment by itself.  But if the problem is common, it is certainly most acute in the area of administrative law, because it is here that judicial independence is most likely to be threatened and undermined by powerful administrative organs.  This is particularly true in China, where the judiciary has not become a highly respected profession, and its welfare is directly controlled by the administration.  True, the court sometimes expand its jurisdiction to put more cases under the umbrella of judicial review, as we have seen in the area of right to education; but the same court can do precisely the opposite to avoid offending someone who controls both the sword and the purse – and it is the same purse holding the judicial funds!  Without judicial independence the quality of administrative litigation becomes highly questionable.[21] 
And such worry is not groundless.  Figure 2 shows that, for those cases that finally came before the judges, a majority of administrative decisions have been confirmed by the court; only a minority of administrative acts was annulled.  It might be that the majority of complaints were simply groundless, but there are reasons to suspect that the more probable cause is the partiality in judicial review.  Fortunately, the trend for the affirmation and annulment has been reversed in recent years (Figure 2).  Most of the trial court decisions appealed, however, are still sustained by the higher courts (Figure 3).  This may be seen as an evidence that the lower courts are doing their jobs properly, but in the current condition, the situation may well be otherwise: that the upper courts are not doing their jobs.  The only sure good sign about the appeal process is that the drop-out rate (less than 10 percent) is much lower, suggesting that those who survive the first round – whether as winners or losers – are mostly “die-hards” for administrative litigation.
       Equally sure is that China has a long way to go on the road toward administrative justice, just as it has a long way to go toward true judicial independence.
 
Figure 3 (Appeals in Administrative Litigation) about here.
 
VI.  Judicialization of the Chinese Constitution?
      I now want to make a jump, from ordinary legal protection of rights to constitutional protection of rights, which is made (perhaps) possible by the recent judicial decision.  The case named Qi Yuling v. Chen Xiaoqi et al. is bound to become a landmark in the constitutional history of China despite the defects in judicial reasoning.[22]  In 1990, Qi passed the provisional examination for entrance to middle-level specialized (zhongzhuan) school, and was admitted by Jining Commercial School.  Yet the admission letter for Qi was picked up from the high school by her classmate Chen, who then studied in Jining under Qi’s name and with Qi’s personal file.  When Chen was about to graduate in 1993, her father forged the physical examination form to replace the form in the original file, and Chen went on to take a job under Qi’s name.  Only after ten years did Qi, who had been taking a low level manual work for want of technical education during this time and was now laid off (xiagang), found out the original treachery and brought the litigation.  The middle-level court of Tengzhou in Shangdong province ordered the defendant to pay 35,000 Yuan for mental damages caused by the infringement of the plaintiff’s right to name, but declined to provide remedy for violation of right to education. 
During appeal, the SPC, in an extremely succinct response to the request of the Shandong High Court, held that the plaintiff’s “the basic right to education as provided by the Constitution” was violated.[23]  This is the first case in which the SPC explicitly cites a constitutional provision as the only basis for the plaintiff’s right and, perhaps more important, for the defendant’s obligation.  The Shandong High Court then went ahead to order the defendants to pay 100,000 Yuan for the loss the plaintiff suffered from the infringement of her right to education.
       Of course the judgment, although hailed as “the first case that judicializes the Constitution” (hereinafter as the “First Constitutional Case”),[24] is not without problems.  Foremost is the problem of applicability of the Constitution as the supreme public law.  As the Chinese legal community has already been aware, the Constitution in this case was applied to a wrong party: the primary defendant is a private individual not public institution to which the constitutional provisions are normally applied, and such an application resulted in a “civil obligation” that is unknown in public law.  The decision would have been perfect had it applied the constitutional provision only to the public entities in the case, that is, the high school, the specialized commercial school, and/or the district education commission involved therein.  This obvious problems call into question the validity of the SPC’s first constitutional decision, and makes it impossible to become “China’s Marbury v. Madison”.[25]
       Despite its press popularity, the decision itself is of only limited significance, since it applies a constitutional provision in absence of -- not against -- any legislative provisions.  In this sense it represents a “weak” form of constitutional applicability, in contrast to the “strong” form represented in the Marbury case, which struck down a jurisdiction provision in the Judicial Act.  As discussed in Part II, it is currently beyond question that the Chinese court can exercise any of such power; such a judicial power would require fundamental change in the current Constitution.  Indeed, as it stands now, the Chinese court lacks powers even to review any administrative acts of “abstract” (or, in European terms, “normative”) nature.  So the immediate significance of the First Constitutional Case is limited to that the constitutional provisions can be directly applied in adjudications, and this is significant only in cases where applicable statutes or other normative documents cannot be found. 
And, of course, this is not true in the present case, since Article 81 of the Education Law clearly and sufficiently provides civil liabilities for infringing one’s right to education.  Thus, some would argue that the First Constitutional Case, practically significant as it may be, is an entirely “unnecessary” decision.
       Despite its problems, the First Constitutional Case does offer some bright hopes, not only for right to education specifically but for the Chinese Constitution as a whole.  The western experience across the Atlantic seems to suggest that a constitution does not count unless it is somehow “judicialized” – in the United States by the ordinary courts, and most prominently by the federal Supreme Court; in France by the special Constitutional Council, and in Germany by the Federal and state Constitutional Courts.  The First Constitutional Case marks the beginning for the Chinese Constitution to evolve on the same track.  It is hopeful that the Chinese Constitution may some day become “true law” and directly enforceable by the court (even though not necessarily by ordinary courts).  And, just as Chief Justice Marshall says of the United States Constitution in the great 1803 case, “if [the judges] can open it at all, what part of it are they forbidden to read, or to obey?”[26]  If one constitutional provision was “judicialized”, there should be nothing to prevent other provisions in the constitution from being judicialized and thus taking legal effect.  Only by then can we truly speak of the “constitutional” protection of rights in China.  By that time the rights that a Chinese citizen finds in the Constitution will be more than a mere declaration of ideals, but become legally enforceable in reality.
 
VII. Recent Progresses and Limitations
       The First Constitutional Case may prove to be of general significance to the future of Chinese public law.  As the Constitution is “judicialized” through right to education, the judicialization may in turn bring the realization of this right as well as other rights stipulated in the Constitution to a new height.  Most significantly, Article 33 of the Constitution explicitly dictates that “all citizens are equal before law”, and presumably also before the education laws.  If this provision is directly enforceable, the Chinese courts can become the most effective organ for combating the now ubiquitous inequality and discriminations officially sanctioned, as clearly demonstrated in the practices in education.[27]  One can even hope that Article 33 (or similar provisions in future constitutions) might play a role as important as the Fourteenth Amendment has done in the United States. 
       Indeed, in recent years there have been several cases specifically based on the equality clause of Article 33.  In the Bank Employment Advertisement Case (2002),[28] the Chengdu Branch of the People’s Bank of China put up an employment advertisement, which limited applicants to certain majors and educational qualifications.  In addition to those, however, the bank also required the heights of male and female applicants to be above 168cm and 155cm, respectively.  Jiang Tao, one of the male applicant and a law student at Sichuan University at that time, fell short of the height requirement.  He alleged that the bank infringed his constitutionally guaranteed equal right to public post.  The court of the Wuhou district, Chengdu, decided that the employment practice was not “administrative act” (xingzheng xingwei) in the sense of exercising its administrative man