《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）China's Marbury：Qi Yuling v. Chen Xiaoqi - The Once and Future Trial of Both Education & Constitutionalization

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ROBERT J.MORRIS 4/19/20126:38PM 274 TSINGHUA CHINA LAW REVIEW Vol.2:273 China's Marbury:Qi Yuling v.Chen Xiaoqi- The Once and Future Trial of Both Education Constitutionalization Robert J.Morris I.INTRODUCTION "Education,"as two comparative scholars of Greater China (PRC,Hong Kong,Taiwan)write,"is the most important factor in the suppression of traditional political orientations." "[E]ducation is a very,if not the most[,]important factor affecting political participation.Once education is controlled for, the influence of practically all other variables either disappears or becomes attenuated.This finding attests to the significant impact of socio-economic modernization as represented by education on political participation."2 The importance of controlling for education is apparent with the case Oi Yuling v.Chen et al.,hereafter the Oi case,the 2001 Supreme People's Court (SPC)ruling that recognized the constitutional right of a PRC citizen to education,name,identity,and reputation.'In a summary announcement in December 2008,the SPC abolished the case,yet interest in the saga of the case persists. ‘University of Hong Kong Faculty of Law..Thanks to Professor Fu Hualing(傅华伶)ofthe University of Hong Kong Faculty of Law for his suggestions on an earlier draft of this article.Thanks also to Professor Albert Chen Hung-yee(陈弘s毅)，also of the Faculty of Law,.for his assistance with the original chapter of my PhD thesis at the University of Hong Kong on which this article is based.The 2007 thesis is entitled,"A Comparative Study of the Meaning and Importance of Several Constitutional Cases in the Highest Courts of the PRC,Hong Kong,and Taiwan,"available at http://sunzil.lib.hku.hk/hkuto/record/B37678620. KUAN HSIN-CHI LAU STU-KAI,Traditional Orientations and Political Participation in Three Chinese Societies,11 J.CoNTEMP.CHINA 297,308(2002)(emphasis added). Id.at 311. 3 This article views the"education"aspect of the case to be the most important and enduring.It is,of course,entirely possible that in the process of time,the other aspects might come to loom larger than education

ROBERT J. MORRIS 4/19/2012 6:38 PM 274 TSINGHUA CHINA LAW REVIEW Vol. 2:273 China’s Marbury: Qi Yuling v. Chen Xiaoqi - The Once and Future Trial of Both Education & Constitutionalization Robert J. Morris* I. INTRODUCTION “Education,” as two comparative scholars of Greater China (PRC, Hong Kong, Taiwan) write, “is the most important factor in the suppression of traditional political orientations.”1 “[E]ducation is a very, if not the most[,] important factor affecting political participation. Once education is controlled for, the influence of practically all other variables either disappears or becomes attenuated. This finding attests to the significant impact of socio-economic modernization as represented by education on political participation.”2 The importance of controlling for education is apparent with the case Qi Yuling v. Chen et al., hereafter the Qi case, the 2001 Supreme People’s Court (SPC) ruling that recognized the constitutional right of a PRC citizen to education, name, identity, and reputation.3 * University of Hong Kong Faculty of Law. Thanks to Professor Fu Hualing (傅华伶) of the University of Hong Kong Faculty of Law for his suggestions on an earlier draft of this article. Thanks also to Professor Albert Chen Hung-yee (陈弘毅), also of the Faculty of Law, for his assistance with the original chapter of my PhD thesis at the University of Hong Kong on which this article is based. The 2007 thesis is entitled, “A Comparative Study of the Meaning and Importance of Several Constitutional Cases in the Highest Courts of the PRC, Hong Kong, and Taiwan,” available at http://sunzi1.lib.hku.hk/hkuto/record/B37678620. In a summary announcement in December 2008, the SPC abolished the case, yet interest in the saga of the case persists. 1 KUAN HSIN-CHI & LAU SIU-KAI, Traditional Orientations and Political Participation in Three Chinese Societies, 11 J. CONTEMP. CHINA 297, 308 (2002) (emphasis added). 2 Id. at 311. 3 This article views the “education” aspect of the case to be the most important and enduring. It is, of course, entirely possible that in the process of time, the other aspects might come to loom larger than education

ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 275 Oi utilized the 1982 PRC Constitution as a source of law but not as a tool of invalidation of another law or action of the government. Although the SPC itself did not refer to the 1803 US Supreme Court case of Marbury v.Madison,PRC and other legal literature has frequently,sometimes uncritically,touted the Oi case as "China's Marbury."During its seven-year life,Oi aroused the attention of many constitutional scholars,prompting many to compare it to Marbury (and incidentally to the writings of James Madison)for the proposition that this might be the watershed of China's new judicial review,if not separation of powers,and therefore a major step toward rule of law.Such hopes never materialized,but so frequent was this perception that reference to Marbury in discussions of Oi became de rigeur in virtually any discussion of the latter.By invoking Marbury,the discussions have focused attention on the courts themselves,or the perceived quirkiness of Oi or the quirkiness of Marbury.This article does not disagree with that focus but suggests additional possibilities that have to do with education itself and how it is“controlled for..” Marbury was a seemingly simple case.5 Certain officials who had been promised titles of office under the previous President sued when the new administration did not produce such titles.They wanted the US Supreme Court to issue a writ of mandamus to compel the new administration to provide their titles.Their lawsuit was an original lawsuit in the Supreme Court,not an appeal from a lower court.Chief Justice John Marshall's opinion held that under both the Constitution and the judiciary statutes,the Supreme Court had only such original and appellate jurisdiction as specifically granted to it in the law,and this was not such a case.The statute under which Plaintiffs sued,Marshall held,granted his Court appellate power in this case,but that statute was unconstitutional 4 Marbury v.Madison,5 U.S.137(1805).Hence,the Qi case does not satisfy Orucu's definition of comparative law as the "use of a foreign solution by a domestic judge either in its entirety or as a guide to interpretation."See ESIN ORUCU,THE ENIGMA OF COMPARATIVE LAW:VARIATIONS ON A THEME FOR THE TWENTY-FIRST CENTURY 79 (Martinus Nijhoff Publishers,2004).It is,however within the ambit of the use of comparative law by legal scholars.The case generated interest in US legal circles. See,e.g..Lingyun Gao,What Makes a Lawyer in China?The Chinese Legal Education System after China's Entry into the WTO,10 WILLAMETTE J.INT'LL.DIsp.RESOL.197,207(2002). For some general comparative background theory for the following discussion,see CEDRIC B. COWING,THE AMERICAN REVOLUTION:ITS MEANING TO ASIANS AND AMERICANS (1977)

ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 275 Qi utilized the 1982 PRC Constitution as a source of law but not as a tool of invalidation of another law or action of the government. Although the SPC itself did not refer to the 1803 US Supreme Court case of Marbury v. Madison, 4 Marbury was a seemingly simple case. PRC and other legal literature has frequently, sometimes uncritically, touted the Qi case as “China’s Marbury.” During its seven-year life, Qi aroused the attention of many constitutional scholars, prompting many to compare it to Marbury (and incidentally to the writings of James Madison) for the proposition that this might be the watershed of China’s new judicial review, if not separation of powers, and therefore a major step toward rule of law. Such hopes never materialized, but so frequent was this perception that reference to Marbury in discussions of Qi became de rigeur in virtually any discussion of the latter. By invoking Marbury, the discussions have focused attention on the courts themselves, or the perceived quirkiness of Qi or the quirkiness of Marbury. This article does not disagree with that focus but suggests additional possibilities that have to do with education itself and how it is “controlled for.” 5 4 Marbury v. Madison, 5 U.S. 137 (1805). Hence, the Qi case does not satisfy Örücü’s definition of comparative law as the “use of a foreign solution by a domestic judge either in its entirety or as a guide to interpretation.” See ESIN ÖRÜCÜ, THE ENIGMA OF COMPARATIVE LAW: VARIATIONS ON A THEME FOR THE TWENTY-FIRST CENTURY 79 (Martinus Nijhoff Publishers, 2004). It is, however within the ambit of the use of comparative law by legal scholars. The case generated interest in US legal circles. See, e.g., Lingyun Gao, What Makes a Lawyer in China? The Chinese Legal Education System after China’s Entry into the WTO, 10 WILLAMETTE J. INT’L L. & DISP. RESOL. 197, 207 (2002). Certain officials who had been promised titles of office under the previous President sued when the new administration did not produce such titles. They wanted the US Supreme Court to issue a writ of mandamus to compel the new administration to provide their titles. Their lawsuit was an original lawsuit in the Supreme Court, not an appeal from a lower court. Chief Justice John Marshall’s opinion held that under both the Constitution and the judiciary statutes, the Supreme Court had only such original and appellate jurisdiction as specifically granted to it in the law, and this was not such a case. The statute under which Plaintiffs sued, Marshall held, granted his Court appellate power in this case, but that statute was unconstitutional 5 For some general comparative background theory for the following discussion, see CEDRIC B. COWING, THE AMERICAN REVOLUTION: ITS MEANING TO ASIANS AND AMERICANS (1977)

ROBERT J.MORRIS 4/19/20126:38PM 276 TSINGHUA CHINA LAW REVIEW Vol.2:273 because it contravened the Constitution.The court thus declined to issue the mandamus,but along the way,and this is the key point,it took upon itself the power of review to "say what the law is."In a masterful stroke,Marshall thus struck down a statute passed by Congress.He invested his court with enormous power but avoided immediate criticism,and perhaps disobedience by the President,by putting his holding in such a way as to deny his own court the power to act in this particular case-it could not act under an unconstitutional statute.And perhaps most significantly for its present comparison to Oi,Marshall positioned his court as the principal educator on the law."To say what the law is"is to assume the position of the oracle.Marbury thus passed instantly into legend as the icon of(1)judicial review by an independent judiciary,(2)balance-of-powers,(3)checks-and-balances,and (4) the rule of law.Its name has been cited as shorthand for these principles ever since.Today it carries much more symbolic weight than its seemingly simple text and story would appear to admit The comparison to Marbury was probably overwrought and inapt.It could be argued that the invocation of Marbury in the literature served merely to create a semblance of legitimacy by a kind of"name-dropping,"in a situation that was not apposite.In the United States there are no general or constitutional rights to name or reputation.Qi was a case of real controversy.8 The literature notes the consistency of the PRC Constitution and statutes with the international covenants on the question of "legal personality." Even so,the subject of the case drew less attention than the fact of 6 Marbury is usually written马伯里诉马迪逊in Chinese,which sets forth a history from a PRC perspective.See彭娟&饶艾，司法审查探源，比较法研究，Peng Juan&Rao Ai,.si fa shen cha tan yuan bi jiao fa yan jiu [Inquiry into the Origins of Judicial Review]1J.CoMp.L94194-96(1998). 7强世功，宪法司法化的误区，法治在中国185（梁治平编，2002），Jiang Shigong,xian fa si fa hua de wu qu,fa zhi zai zhongguo [Misleading Discourse of Constitutional Adjudication]RULE OF LAW IN CHINA185(2002). See.e.g..Georg Vanberg,Abstract Judicial Review.Legislative Bargaining.and Policy Compromise, 10 J.THEORETICAL POL.299,301 (1998),Robert Clinton,Game Theory.Legal History,and the Origins of Judicial Review,38 AM.J.POL.SCI.285,285-302 (1994)(discussing the "game theory" model),杨子慧，再论具体法规审查，辅仁法学，Yang Zi Hui,.zai lun lu ti fa gui shen cha,fu ren fa xue [Revisiting the Investigation of Concrete Legal Rules Parts]31 FU JEN L.REV.218 (2005),32 FU JEN L.REV.181 (2006)(regarding the important concrete/abstract dichotomy). For the discussion and sources assembled in Femando Volio,see,e.g Fernando Volio,Legal Personality,Privacy,and the Family,in THE INTERNATIONAL BILL OF RIGHTS:THE COVENANT ON CIVIL AND POLITICAL RIGHTS 185-208(Louis Henkin ed.,Columbia University Press,1981)

ROBERT J. MORRIS 4/19/2012 6:38 PM 276 TSINGHUA CHINA LAW REVIEW Vol. 2:273 because it contravened the Constitution. The court thus declined to issue the mandamus, but along the way, and this is the key point, it took upon itself the power of review to “say what the law is.” In a masterful stroke, Marshall thus struck down a statute passed by Congress. He invested his court with enormous power but avoided immediate criticism, and perhaps disobedience by the President, by putting his holding in such a way as to deny his own court the power to act in this particular case — it could not act under an unconstitutional statute. And perhaps most significantly for its present comparison to Qi, Marshall positioned his court as the principal educator on the law. “To say what the law is” is to assume the position of the oracle. Marbury thus passed instantly into legend as the icon of (1) judicial review by an independent judiciary, (2) balance-of-powers, (3) checks-and-balances, and (4) the rule of law. Its name has been cited as shorthand for these principles ever since. Today it carries much more symbolic weight than its seemingly simple text and story would appear to admit. The comparison to Marbury was probably overwrought and inapt. It could be argued that the invocation of Marbury in the literature6 served merely to create a semblance of legitimacy by a kind of “name-dropping,”7 in a situation that was not apposite. In the United States there are no general or constitutional rights to name or reputation. Qi was a case of real controversy. 8 The literature notes the consistency of the PRC Constitution and statutes with the international covenants on the question of “legal personality.” 9 6 Marbury is usually written 马伯里诉马迪逊 in Chinese, which sets forth a history from a PRC perspective. See 彭娟 & 饶艾, 司法审查探源, 比较法研究, Peng Juan & Rao Ai, si fa shen cha tan yuan, bi jiao fa yan jiu [Inquiry into the Origins of Judicial Review] 12 J. COMP. L. 194, 194-96 (1998). Even so, the subject of the case drew less attention than the fact of 7 强世功, 宪法司法化的误区, 法治在中国 185 (梁治平编, 2002), Jiang Shigong, xian fa si fa hua de wu qu, fa zhi zai zhongguo [Misleading Discourse of Constitutional Adjudication] RULE OF LAW IN CHINA 185 (2002). 8 See, e.g., Georg Vanberg, Abstract Judicial Review, Legislative Bargaining, and Policy Compromise, 10 J. THEORETICAL POL. 299, 301 (1998); Robert Clinton, Game Theory, Legal History, and the Origins of Judicial Review, 38 AM. J. POL. SCI. 285, 285-302 (1994) (discussing the “game theory” model); 杨子慧, 再论具体法规审查, 辅仁法学, Yang Zi Hui, zai lun lu ti fa gui shen cha, fu ren fa xue [Revisiting the Investigation of Concrete Legal Rules Parts] 31 FU JEN L. REV. 218 (2005), 32 FU JEN L. REV. 181 (2006) (regarding the important concrete/abstract dichotomy). 9 For the discussion and sources assembled in Fernando Volio, see, e.g., Fernando Volio, Legal Personality, Privacy, and the Family, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 185-208 (Louis Henkin ed., Columbia University Press, 1981)

ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 277 the SPC asserting itself institutionally and using the Constitution to do so.Professor Wang Zhen-min argues persuasively that there is no good reason why the PRC Constitution should not be cited and used in litigation.There are at least three possible understandings of the Oi case and its(dis)similarity to Marbury.They are: A.There is no true similarity-the invocation of Marbury is a sham designed to lend credence and legitimacy to a "showcase" litigation in order to provide the illusion of"judicial review"and the "rule of law"by allusion to a famous case.This perspective accords with the view of those who argue that the SPC is not independent but merely a puppet of the Chinese Communist Party (CCP): B.Oi resembles what some describe as vertical federalism (rather than a horizontal separation-of-powers)set up by Marbury in American judicial review.By dealing with "local"or provincial Shandong courts,the "national"SPC undertook no action that threatened any of its co-equal agencies such as the CCP,the National People's Congress(NPC),or its Standing Committee (NPCSC).In other words,Oi verified the power of the central government to deal authoritatively with the provinces;andor C.Oi represents a true step towards the independence of the SPC and other courts on various levels,in terms of negotiation of power and status of these entities.This case evidences the trend toward greater "political diffusion"and a position of"high equilibrium"for the SPC,according to the paradigm outlined by Tom Ginsburg for the expansion of judicial power,the increase of judicial legitimacy, and the gradual deepening of a truly constitutional order. Is this the kind of idea intended to be compared when Marbury and Oi are compared?Another possible model is the independent Council of Grand Justices(大法官会议)(CGJ),Taiwan's constitutional court,several decisions of which are relevant here. 0王振民，我因宪法可否进入诉讼，法商研究28,30(1999)，Wang Zhen Min,wo guo xian fa ke fou jin ru su song,fa shang yan jiu [Does Our Constitution Have Access to Litigation?]16 STUD.L.& BUs.28,30(1999)("The Constitution itself contains no clause manifestly prohibiting its application in litigation.”"Arguing that this meaning is implied in the司of司法，the“administration of the law"), TOM GINSBURG,JUDICIAL REVIEW IN NEW DEMOCRACIES:CONSTITUTIONAL COURTS IN ASIAN CASES (2003)(U.K.)

ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 277 the SPC asserting itself institutionally and using the Constitution to do so. Professor Wang Zhen-min argues persuasively that there is no good reason why the PRC Constitution should not be cited and used in litigation.10 A.There is no true similarity — the invocation of Marbury is a sham designed to lend credence and legitimacy to a “showcase” litigation in order to provide the illusion of “judicial review” and the “rule of law” by allusion to a famous case. This perspective accords with the view of those who argue that the SPC is not independent but merely a puppet of the Chinese Communist Party (CCP); There are at least three possible understandings of the Qi case and its (dis)similarity to Marbury. They are: B. Qi resembles what some describe as vertical federalism (rather than a horizontal separation-of-powers) set up by Marbury in American judicial review. By dealing with “local” or provincial Shandong courts, the “national” SPC undertook no action that threatened any of its co-equal agencies such as the CCP, the National People’s Congress (NPC), or its Standing Committee (NPCSC). In other words, Qi verified the power of the central government to deal authoritatively with the provinces; and/or C. Qi represents a true step towards the independence of the SPC and other courts on various levels, in terms of negotiation of power and status of these entities. This case evidences the trend toward greater “political diffusion” and a position of “high equilibrium” for the SPC, according to the paradigm outlined by Tom Ginsburg, 11 Is this the kind of idea intended to be compared when Marbury and Qi are compared? Another possible model is the independent Council of Grand Justices ( 大法官会议 ) (CGJ), Taiwan’s constitutional court, several decisions of which are relevant here. for the expansion of judicial power, the increase of judicial legitimacy, and the gradual deepening of a truly constitutional order. 10 王振民, 我国宪法可否进入诉讼, 法商研究 28, 30 (1999), Wang Zhen Min, wo guo xian fa ke fou jin ru su song, fa shang yan jiu [Does Our Constitution Have Access to Litigation?] 16 STUD. L. & BUS. 28, 30 (1999) (“The Constitution itself contains no clause manifestly prohibiting its application in litigation.” Arguing that this meaning is implied in the 司 of 司法, the “administration of the law”). 11 TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES (2003) (U.K.)

ROBERT J.MORRIS 4/19/20126:38PM 278 TSINGHUA CHINA LAW REVIEW Vol.2:273 Interestingly,some PRC legal scholars have viewed this CGJ model as the one which the PRC should adopt and integrate,including the publishing of dissenting opinions,as its judicial model.2 Recently, Professor Chen Hung-yee of the University of Hong Kong,after an extensive review of the procedures and powers of the Taiwan Council of Grand Justices,has written:"In my view,we ought to conduct extensive studies on the theory and practice of how the courts of Taiwan,Germany,and other continental law countries apply constitutional provisions,and through such analysis consider future developments which the courts of our country can follow when citing or applying aspects of the constitution(我认为，我们应该对台湾地区和德国等大陆法系国家的法院适用宪法条文的理论和实践作深入的研究，从而思考我国法院未来在援引或适用宪法方面应走的道路).13 The seeming“adoption'”of Marbury may be a back-door approach to advocating adoption of the CGJ system,without any explicit acceptance.14 The resemblance of the Taiwanese system and cases in the US system is commonly remarked on,but does Oi really warrant such a comparison?The abolition of the Oi case in 2008 may have been a response to these kinds of possibilities.Oi remained good law for seven years when it was constantly referred to as "China's Marbury."Even after its demise,the case continues to generate discussion about the role of the courts and the constitution.The comparative use of Marbury forms the theoretical heart of this article. 2PRC court rules now allow for the acceptance of certain lower-level Taiwan civil judgments. 民法院关于人民法院认可台湾地区有关法院民事判决的补充规定，Zui gao ren min fa yuan guan yu ren min fa yuan ren ke Taiwan di qu you guan fa yuan min shi pan jue de bu chong gui ding [Supreme People's Court Supplementary Rules on People's Courts'Recognition of Civil Decisions Made by Courts of the Taiwan Region](promulgated by the Judicial Comm.Sup.People's Ct..Mar.30,2009, effective May 14.2009)2009 SUP.PEOPLE's CT.GAZ.112 (P.R.C.). is陈弘毅，齐案“批复"的废止与“宪法司法化"和法院援引宪法问题，法学，Chen Hongyi,Qi an'pi fu'de fei zhi yu 'xian fa si fa hua'he fa yuan yuan yin xian fa wen ti,Fa Xue [Questions Concerning Abolition of Oi's Pifu,Judicialization of Constitution and Citation of Constitution by Courts]LEGAL SCI.MONTHLY,Mar.26,2009,at 11,14. “Se,eg,许章润，多向度的现代汉语文明法律智慧：台湾的法学研究对于祖国大陆同行的影 Xu Zhang Run,duo xiang du de xian dai han yu wen ming fa lu zhi hui-tai wan de fa xue yan jiu dui yu zu guo da lu tong hang de ying xiang [The Multi-Dimensional Legal Knowledge of Modern Chinese Culture-The Influence of Taiwan Jurisprudence on the Lawyers in the Mainland 6 J.CoMP.L.95 (2003)

ROBERT J. MORRIS 4/19/2012 6:38 PM 278 TSINGHUA CHINA LAW REVIEW Vol. 2:273 Interestingly, some PRC legal scholars have viewed this CGJ model as the one which the PRC should adopt and integrate, including the publishing of dissenting opinions, as its judicial model.12 Recently, Professor Chen Hung-yee of the University of Hong Kong, after an extensive review of the procedures and powers of the Taiwan Council of Grand Justices, has written: “In my view, we ought to conduct extensive studies on the theory and practice of how the courts of Taiwan, Germany, and other continental law countries apply constitutional provisions, and through such analysis consider future developments which the courts of our country can follow when citing or applying aspects of the constitution (我认为,我们应该对台湾地区和德国等大陆法系国家的法院适用宪法条文的理论和实践作深入的研究，从而思考我国法院未来在援引或适用宪法方面应走的道路). 13 The seeming “adoption” of Marbury may be a back-door approach to advocating adoption of the CGJ system, without any explicit acceptance.14 12 PRC court rules now allow for the acceptance of certain lower-level Taiwan civil judgments. 最高人民法院关于人民法院认可台湾地区有关法院民事判决的补充规定, Zui gao ren min fa yuan guan yu ren min fa yuan ren ke Taiwan di qu you guan fa yuan min shi pan jue de bu chong gui ding [Supreme People’s Court Supplementary Rules on People’s Courts’ Recognition of Civil Decisions Made by Courts of the Taiwan Region] (promulgated by the Judicial Comm. Sup. People’s Ct., Mar. 30, 2009, effective May 14, 2009) 2009 SUP. PEOPLE’S CT. GAZ. 112 (P.R.C.). The resemblance of the Taiwanese system and cases in the US system is commonly remarked on, but does Qi really warrant such a comparison? The abolition of the Qi case in 2008 may have been a response to these kinds of possibilities. Qi remained good law for seven years when it was constantly referred to as “China’s Marbury.” Even after its demise, the case continues to generate discussion about the role of the courts and the constitution. The comparative use of Marbury forms the theoretical heart of this article. 13 陈弘毅, 齐案“批复”的废止与“宪法司法化”和法院援引宪法问题, 法学, Chen Hongyi, Qi an ‘pi fu’ de fei zhi yu ‘xian fa si fa hua’ he fa yuan yuan yin xian fa wen ti, Fa Xue [Questions Concerning Abolition of Qi’s Pifu, Judicialization of Constitution and Citation of Constitution by Courts] LEGAL SCI. MONTHLY, Mar. 26, 2009, at 11, 14. 14 See, e.g., 许章润, 多向度的现代汉语文明法律智慧: 台湾的法学研究对于祖国大陆同行的影响, Xu Zhang Run, duo xiang du de xian dai han yu wen ming fa lu zhi hui-tai wan de fa xue yan jiu dui yu zu guo da lu tong hang de ying xiang [The Multi-Dimensional Legal Knowledge of Modern Chinese Culture—The Influence of Taiwan Jurisprudence on the Lawyers in the Mainland] 6 J. COMP. L. 95 (2003)

ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 279 A.Historical and Theoretical Background Is the 1982 PRC Constitution justiciable,and does the SPC have the authority to interpret it?Under the PRC system,the courts have,or are supposed to have,no power to adjudicate the Constitution if any interpretation is required.15 If it were to be interpreted at all,like statutes and administrative rules,such interpretation would be the sole province of the law's creator,the National People's Congress (NPC)and its Standing Committee (NPCSC).16 Indeed,the word "interpretation"itself is contested and problematic.7 The advent of the icase further problematized the matter because the SPC took upon itself the authority to construe and apply the PRC Constitution in deciding a case by answering a query from a lower court.It can be argued that the Court's strategy was not necessary to the case itself nor to assisting the Plaintiff in achieving her petition.Full statutory grounds were available in what was essentially nothing more than a personal injury(tort)case, yet the SPC undertook a constitutional analysis that,without saying it in so many words,took to the Court a jurisdiction expressly denied it in the Constitution.Depending upon one's view,this may have lent greater legitimacy or illegitimacy to the SPC in the debates that have ensued.18 i5 See UNDERSTANDING CHINA'S LEGAL SYSTEM:ESSAYS IN HONOR OF JEROME A.COHEN(C.Stephen Hsu ed.,2003)(courts of the "greater China"area);CoNFUCIAN DEMOCRACY,WHY AND How: PROCEEDINGS OF THE FIRST INTERNATIONAL CONFERENCE ON LIBERAL,SOCIAL AND CONFUCIAN DEMOCRACY (Hahm Chaibong et al.eds.,2000)(comparing "Asian democracy");CONFUCIANISM FOR THE MODERN WORLD(Daniel A.Bell Hahm Chaibong eds.,2003)(comparing "Asian democracy"); Jack N.Rakove,The Origins of Judicial Review:A Plea for New Contexts,49 STAN.L.REV.1031 (1997)(federalism);see generally NANPING LIU,OPINIONS OF THE SUPREME PEOPLE'S COURT: JUDICIAL INTERPRETATION IN CHINA(1997)(background and overview of Chinese legal system);POH- LING TAN,ASIAN LEGAL SYSTEMS:LAW,SOCIETY AND PLURALISM IN EAST ASIA (1997)(comparative overview of legal systems and contexts). See Kong Xiaohong,Legal Interpretation in China,6 Conn.J.Int'l L491(1991). ”蒲海涛和杨平，“齐玉苓案”涉及的若干问题（其后果却可能削弱宪法制约因家权力的核心功能，冲淡基本权利的公法性)，Pu Haitao&Yang Ping,“qi yu ling an”she ji de ruo gan wen ti[Some Ouestions Regarding the "Oi Yuling Case"]23 SCI.ECON.SoC'Y 93 (2005).The authors neatly problematize a key idea through a kind of word-play:judicialization (and privatization/personalization (of the law-both phrases pronounced exactly the same. Qianfan Zhang.The People's Court in Transition:The Prospects of the Chinese Judicial Reform,12 J.CONTEMP.CHINA 69(2003)(providing an overview of the SPC in the present era);see also Liu. Opinions,supra note 15 Anthony R.Dicks,The Law-Making Functions of the Chinese Judiciary: Filling Holes in the Civil Law,in Comparative Law in Global Perspective:Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department (Ian Edge ed.,Transnational Publishers,2000)

ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 279 A. Historical and Theoretical Background Is the 1982 PRC Constitution justiciable, and does the SPC have the authority to interpret it? Under the PRC system, the courts have, or are supposed to have, no power to adjudicate the Constitution if any interpretation is required.15 If it were to be interpreted at all, like statutes and administrative rules, such interpretation would be the sole province of the law’s creator, the National People’s Congress (NPC) and its Standing Committee (NPCSC).16 Indeed, the word “interpretation” itself is contested and problematic.17 The advent of the Qi case further problematized the matter because the SPC took upon itself the authority to construe and apply the PRC Constitution in deciding a case by answering a query from a lower court. It can be argued that the Court’s strategy was not necessary to the case itself nor to assisting the Plaintiff in achieving her petition. Full statutory grounds were available in what was essentially nothing more than a personal injury (tort) case, yet the SPC undertook a constitutional analysis that, without saying it in so many words, took to the Court a jurisdiction expressly denied it in the Constitution. Depending upon one’s view, this may have lent greater legitimacy or illegitimacy to the SPC in the debates that have ensued.18 15 See UNDERSTANDING CHINA’S LEGAL SYSTEM: ESSAYS IN HONOR OF JEROME A. COHEN (C. Stephen Hsu ed., 2003) (courts of the “greater China” area); CONFUCIAN DEMOCRACY, WHY AND HOW: PROCEEDINGS OF THE FIRST INTERNATIONAL CONFERENCE ON LIBERAL, SOCIAL AND CONFUCIAN DEMOCRACY (Hahm Chaibong et al. eds., 2000) (comparing “Asian democracy”); CONFUCIANISM FOR THE MODERN WORLD (Daniel A. Bell & Hahm Chaibong eds., 2003) (comparing “Asian democracy”); Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031 (1997) (federalism); see generally NANPING LIU, OPINIONS OF THE SUPREME PEOPLE’S COURT: JUDICIAL INTERPRETATION IN CHINA (1997) (background and overview of Chinese legal system); POHLING TAN, ASIAN LEGAL SYSTEMS: LAW, SOCIETY AND PLURALISM IN EAST ASIA (1997) (comparative overview of legal systems and contexts). 16 See Kong Xiaohong, Legal Interpretation in China, 6 Conn. J. Int’l L. 491 (1991). 17 蒲海涛和杨平, “齐玉苓案”涉及的若干问题 (其后果却可能削弱宪法制约国家权力的核心功能, 冲淡基本权利的公法性), Pu Haitao & Yang Ping, “qi yu ling an” she ji de ruo gan wen ti [Some Questions Regarding the “Qi Yuling Case”] 23 SCI. & ECON. & SOC’Y 93 (2005). The authors neatly problematize a key idea through a kind of word-play: judicialization ( 司法化 ) and privatization/personalization (私法化) of the law—both phrases pronounced exactly the same. 18 Qianfan Zhang, The People’s Court in Transition: The Prospects of the Chinese Judicial Reform, 12 J. CONTEMP. CHINA 69 (2003) (providing an overview of the SPC in the present era); see also Liu, Opinions, supra note 15 ; Anthony R. Dicks, The Law-Making Functions of the Chinese Judiciary: Filling Holes in the Civil Law, in Comparative Law in Global Perspective: Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department (Ian Edge ed., Transnational Publishers, 2000)

ROBERT J.MORRIS 4/19/20126:38PM 280 TSINGHUA CHINA LAW REVIEW Vol.2:273 All documents and decisions of the SPC are published officially in the Gazette of the Supreme People's Court of the People's Republic of China(中华人民共和国最高人民法院公报)，which is issued six times a year and cumulated in a single bound volume once a year.They are not intended to carry the weight of precedent (as in common-law stare decisis)or the force of command or coercion that decisions of common-law courts do and that Interpretations of Taiwan's CGJ now do.The SPC does not(or is not supposed to) issue constitutional interpretations一to“say what the law is'”一the famous dictum of Marbury.The 2001 SPC bound volume of the Gazette contains the Qi decision.20 PRC courts are required to look to the NPC and NPCSC for decisions on the constitutionality of the law,including the adjudication of administrative rules and decisions.This arises out of several provisions of the 1982 Constitution.Article 62 of the Constitution provides that the NPC has the "power to supervise the enforcement of the Constitution."Article 67 provides that the NPC's Standing Committee has the "power to interpret the Constitution and supervise its enforcement(解释宪法，监督宪法的实施)，to enact and amend laws(制定和修改法律..)，and to interpret laws(解释法律).”None of the above powers are given to the courts.Therefore,those functions cannot be labelled under "judicial review,"as described in common-law jurisdictions.The courts may conduct some form of"review,"but this activity cannot See Nanping Liu,Legal Precedentswith Chinese Characteristics:Published Cases in the Gaete of the Supreme People's Court,1(5)ZHONG GUO FA YAN JIU XUE KAN [Journal of Chinese Law]107 (1991).Indeed,one of the maneuvers of the SPC in the Qi case,as we shall see,was to cite several "precedents"without declaring them to be precedents.See Chris X.Lin,A Ouiet Revolution:An Overview of China's Judicial Reform,4 ASIAN-PAC.L.POL'Y J.255,313 (2003);Zhang Zhanyi,A Discussion of Communicative Culture,23 CLTA J.107 (1988);Series Introduction,Contract,Guanxi and Dispute Resolution in China (Tahirih V.Lee ed.,Garland Publishing,1997);Paul Gewirtz, Independence and Accountability of Courts,24 GLOBAL L.REV.7 (2002),Approaches to Constitutional Interpretation:Comparative Constitutionalism and Chinese Characteristics,31 HK L.J.200(2001). The seminal article,with much that is still true and relevant,is Jerome Alan Cohen,The Chinese Communist Party and Judicial Independence':1949-1959,82 HARV.L.REV.967 (1969). 2 An English translation of the case may be read at Huiping ller (trans),Qi Yuling v.Chen Xiaogietal. 39 CHINESE EDUC SOC'Y 58-74 (2006). 2Pitman B.Potter,Globalication and Economic Regulation in China:Selective Adaptation of Globalized Norms and Practices,2 WASH.U.GLOBAL STUD.L.REV.119,138-39 (2003)(notes 87 through 100 and accompanying text)

ROBERT J. MORRIS 4/19/2012 6:38 PM 280 TSINGHUA CHINA LAW REVIEW Vol. 2:273 All documents and decisions of the SPC are published officially in the Gazette of the Supreme People’s Court of the People’s Republic of China (中华人民共和国最高人民法院公报), which is issued six times a year and cumulated in a single bound volume once a year. They are not intended to carry the weight of precedent (as in common-law stare decisis) or the force of command or coercion that decisions of common-law courts do and that Interpretations of Taiwan’s CGJ now do.19 The SPC does not (or is not supposed to) issue constitutional interpretations — to “say what the law is” — the famous dictum of Marbury. The 2001 SPC bound volume of the Gazette contains the Qi decision.20 PRC courts are required to look to the NPC and NPCSC for decisions on the constitutionality of the law, including the adjudication of administrative rules and decisions.21 19 See Nanping Liu, ‘Legal Precedents’ with Chinese Characteristics: Published Cases in the Gazette of the Supreme People’s Court, 1(5) ZHONG GUO FA YAN JIU XUE KAN [Journal of Chinese Law] 107 (1991). Indeed, one of the maneuvers of the SPC in the Qi case, as we shall see, was to cite several “precedents” without declaring them to be precedents. See Chris X. Lin, A Quiet Revolution: An Overview of China’s Judicial Reform, 4 ASIAN-PAC. L. & POL’Y J. 255, 313 (2003); Zhang Zhanyi, A Discussion of Communicative Culture, 23 CLTA J. 107 (1988); Series Introduction, Contract, Guanxi, and Dispute Resolution in China (Tahirih V. Lee ed., Garland Publishing, 1997); Paul Gewirtz, Independence and Accountability of Courts, 24 GLOBAL L. REV. 7 (2002); Approaches to Constitutional Interpretation: Comparative Constitutionalism and Chinese Characteristics, 31 HK L. J. 200 (2001). The seminal article, with much that is still true and relevant, is Jerome Alan Cohen, The Chinese Communist Party and ‘Judicial Independence’: 1949-1959, 82 HARV. L. REV. 967 (1969). This arises out of several provisions of the 1982 Constitution. Article 62 of the Constitution provides that the NPC has the “power to supervise the enforcement of the Constitution.” Article 67 provides that the NPC’s Standing Committee has the “power to interpret the Constitution and supervise its enforcement (解释宪法，监督宪法的实施), to enact and amend laws (制定和修改…法律….), and to interpret laws (解释法律).” None of the above powers are given to the courts. Therefore, those functions cannot be labelled under “judicial review,” as described in common-law jurisdictions. The courts may conduct some form of “review,” but this activity cannot 20 An English translation of the case may be read at Huiping Iler (trans), Qi Yuling v. Chen Xiaoqi et al. 39 CHINESE EDUC & SOC’Y 58-74 (2006). 21 Pitman B. Potter, Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices, 2 WASH. U. GLOBAL STUD. L. REV. 119, 138-39 (2003) (notes 87 through 100 and accompanying text)

ROBERT J.MORRIS 4/19/20126:38PM 2010 CHINA'S MARBURY 281 be considered as "judicial review."This is,or has been,perceived as the outer limit of judicial involvement with the Constitution- until the Oi case. II.QIYULING V.CHEN ET AL.-A PRECIS Plaintiff,Qi Yuling(齐玉苓)，wasa28year-old female living in Shandong Province.Defendant,Chen Xiaoqi(陈晓琪)，also28, was of the same province.They graduated the same year.Their facial features were obviously different.In their examinations of 1990,Qi did well but Chen did not and so lost the opportunity for further educational advancement.In order to continue in school at the next level,she fraudulently got hold of Plaintiff Qi's notice of admission.Chen's father,also a defendant,assisted her in falsifying a photograph and helping her make the switch of place and identity.When she presented the document at the school,she did not take along evidence of the examination.Nevertheless,by using Plaintiffs name and identity,she was admitted and began her studies.In 1993,after pretending to be the Plaintiff for three years, Chen graduated and got a job-an expected consequence of her education.Other defendants(the school,school officials,etc.)were complicit,either knowingly or negligently,in this identity fraud. The school in question was a vocational business school. The lower Shandong court held that under the "general rule of the civil law,"which protects the right of name,another person was prohibited from "interfering with,falsifying,or passing oneself off as"the name or identity of another.It is significant that this reference was to a rule or statute,not the PRC Constitution.The difficulty for the lower court was that the General Principles of the Civil Law of the People's Republic of China does not explicitly provide the civil right to receive education.Section 4 of Chapter 5 of the General Principles does provide for rights to personal name, reputation,and honor,and this may be part of the "evolving concept of a right to privacy in Chinese law."22 However,Article 9,Section 2Shen Kui,Is It the Beginming of the Era of the Rule of the Constitution?Reinterpreting China'sFirst Constitutional Case',12 PAC.RIM L.POL'Y J.199,216 (2003)

ROBERT J. MORRIS 4/19/2012 6:38 PM 2010 CHINA’S MARBURY 281 be considered as “judicial review.” This is, or has been, perceived as the outer limit of judicial involvement with the Constitution — until the Qi case. II. QIYULING V. CHEN ET AL.—A PRÉCIS Plaintiff, Qi Yuling (齐玉苓), was a 28 year-old female living in Shandong Province. Defendant, Chen Xiaoqi (陈晓琪), also 28, was of the same province. They graduated the same year. Their facial features were obviously different. In their examinations of 1990, Qi did well but Chen did not and so lost the opportunity for further educational advancement. In order to continue in school at the next level, she fraudulently got hold of Plaintiff Qi’s notice of admission. Chen’s father, also a defendant, assisted her in falsifying a photograph and helping her make the switch of place and identity. When she presented the document at the school, she did not take along evidence of the examination. Nevertheless, by using Plaintiff’s name and identity, she was admitted and began her studies. In 1993, after pretending to be the Plaintiff for three years, Chen graduated and got a job — an expected consequence of her education. Other defendants (the school, school officials, etc.) were complicit, either knowingly or negligently, in this identity fraud. The school in question was a vocational business school. The lower Shandong court held that under the “general rule of the civil law,” which protects the right of name, another person was prohibited from “interfering with, falsifying, or passing oneself off as” the name or identity of another. It is significant that this reference was to a rule or statute, not the PRC Constitution. The difficulty for the lower court was that the General Principles of the Civil Law of the People’s Republic of China does not explicitly provide the civil right to receive education. Section 4 of Chapter 5 of the General Principles does provide for rights to personal name, reputation, and honor, and this may be part of the “evolving concept of a right to privacy in Chinese law.”22 22 Shen Kui, Is It the Beginning of the Era of the Rule of the Constitution? Reinterpreting China’s ‘First Constitutional Case’, 12 PAC. RIM L. & POL’Y J. 199, 216 (2003). However, Article 9, Section

ROBERT J.MORRIS 4/19/20126:38PM 282 TSINGHUA CHINA LAW REVIEW Vol.2:273 L,of the Education Law(教育法)，the more specific statute,provides that every citizen "has the duty as well as the right to receive education,"and Article 81 provides for civil liability for anyone who infringes such right23-two facts that have gone surprisingly unremarked in much of the literature on Oi,including the trial and appellate court documents.24 Despite judgment in her favor,plaintiff was not satisfied.She filed an appeal in the Shandong Higher People's Court.The primary basis of this appeal was that the mental suffering caused by Defendant Chen was so severe.The appeal also rested on a difference in the regulations and policies regarding the need for a letter of introduction and other matters affecting the identification process for students.The defendants-appellees'concerted actions, she alleged,had deprived her of her right to education and caused her to forfeit a series of related rights and benefits as a result.The original judgment,she alleged,denied the full damages for her infringed educational rights and was therefore in error.She asked the appellate court to increase the monetary awards,primarily for mental distress.The response of the appellee father was that indeed,he had helped his daughter set up the trickery,and his daughter had gained the advantage of it,but this in fact had not violated plaintiff's express intent that she "was not prepared"to attend the school.He added that although they may have violated plaintiffs general right to education,they had nevertheless not violated her right to secondary or higher education,and that therefore she was not entitled to greater damages for mental distress. The appellee school replied that the damages plaintiff had suffered to her reputation were entirely due to the elaborate scheme. fabrication,and the materials of altered records of the father and daughter.The school alleged that there was no proof of its knowledge or complicity in any actions that may have caused plaintiffs mental anguish.After reviewing and augmenting the facts of the case,the appellate court noted that the case consisted in a "knotty question of the application of the law"because under Section 23教育法，Jiao yu fa[Education Law](promulgated by the Standing Comm.Nat'I People's Cong,. Mar.18,1995,effective Sep.1,1995),available at ww.nuaa.edu.cen/xcb_web/law_study/jiaoyufa.htm(last visited Sep.24,005)(P.R.C.). This singular omission deserves further study and comment,but is beyond the scope of this article

ROBERT J. MORRIS 4/19/2012 6:38 PM 282 TSINGHUA CHINA LAW REVIEW Vol. 2:273 1, of the Education Law (教育法), the more specific statute, provides that every citizen “has the duty as well as the right to receive education,” and Article 81 provides for civil liability for anyone who infringes such right 23 — two facts that have gone surprisingly unremarked in much of the literature on Qi, including the trial and appellate court documents.24 Despite judgment in her favor, plaintiff was not satisfied. She filed an appeal in the Shandong Higher People’s Court. The primary basis of this appeal was that the mental suffering caused by Defendant Chen was so severe. The appeal also rested on a difference in the regulations and policies regarding the need for a letter of introduction and other matters affecting the identification process for students. The defendants-appellees’ concerted actions, she alleged, had deprived her of her right to education and caused her to forfeit a series of related rights and benefits as a result. The original judgment, she alleged, denied the full damages for her infringed educational rights and was therefore in error. She asked the appellate court to increase the monetary awards, primarily for mental distress. The response of the appellee father was that indeed, he had helped his daughter set up the trickery, and his daughter had gained the advantage of it, but this in fact had not violated plaintiff’s express intent that she “was not prepared” to attend the school. He added that although they may have violated plaintiff’s general right to education, they had nevertheless not violated her right to secondary or higher education, and that therefore she was not entitled to greater damages for mental distress. The appellee school replied that the damages plaintiff had suffered to her reputation were entirely due to the elaborate scheme, fabrication, and the materials of altered records of the father and daughter. The school alleged that there was no proof of its knowledge or complicity in any actions that may have caused plaintiff’s mental anguish. After reviewing and augmenting the facts of the case, the appellate court noted that the case consisted in a “knotty question of the application of the law” because under Section 23 教育法, Jiao yu fa [Education Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 18, 1995, effective Sep. 1, 1995), available at www.nuaa.edu.cn/xcb_web/law_study/jiaoyufa.htm (last visited Sep. 24, 2005) (P.R.C.). 24 This singular omission deserves further study and comment, but is beyond the scope of this article

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