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The fall of Qi Yuling

By Jack M. Balkin

Quietly, in a batch of other laws and rulings being thrown out at the end of 2008, China recently abolished the Qi Yuling ruling, nullifying what has long been considered by many the seminal constitutional law ruling in PRC history. The case was the first to indicate that China?s constitution could be applied in civil litigation. Many hoped it would set the scene for the integration of constitutional law into China?s existing judicial system.

For those who have been watching the Supreme People?s Court over the past year, the loss of the Qi Yuling ruling is not shocking, and some argue not particularly important. Since the appointment of the Wang Shengjun, a former police chief in Anhui Province, as the head of the court last year, the SPC has steered the judicial system closer into the Party fold, espousing a doctrine that keeps the interests of the Party and the people on equal footing with China?s constitution and laws. There is little space in Wang Shengjun's world for a case like Qi Yuling.

The case involved a woman, Qi Yuling, who had recently taken an examination to enter a local business school. Her exam results, however, were intercepted by Chen Xiaoqi, the daughter of a powerful local man, who used them as her own. She continued using Qi?s identity through her course of study and later, to get a job at a bank. Apparently, a number of government institutions were aware of the fraud, but looked the other way.

When Qi discovered what had happened, she sued on the grounds that it violated both the right to her name and her right to education. The court ruled in her favor, based on a clause included in the PRC?s constitution. The decision was celebrated at the time, with some going so far as to proclaim it China?s Marbury vs. Madison.

After the initial furor over the Qi case died down, however, the constitution disappeared from the halls of the SPC. No other case further solidified the court?s interpretive powers. The withdrawal of the decision, some argue, is really only a confirmation of its impotence. There are reasons for this?for one, Qi Yuling was a civil case. In a recent article that appeared in Caijing, a Chinese business and finance magazine Xiao Han, the Dean of the Fada Commercial Law Institute, argues that ?(The constitution) should be the mediator between the people and the country, rather than the mediator between people.?
It?s application in the Qi Yuling case fails to do this.

One thing that the case did was the change the argument over constitutional reform. After the Qi ruling came out, calls for a separate constitutional court slackened. The Qi Yuling case had people thinking that constitutional interpretation could be assimilated into China?s current system. This argument has provided fuel to many ?wenquan? or rights lawyers have worked toward increased awareness of constitutional rights occasionally trying to use the constitution in their arguments. While these advocates had their successes, in seven years there has been no real follow-up to Qi Yuling.

Even if Qi Yuling had signaled real change, Han argues that China?s current legal structure could not support constitutional interpretation. China?s courts are not mature or independent enough to tackle constitutional interpretation responsibly. ?The constitution would cease to exist,? he says. Han suggests, instead, the creation of an independent constitutional court.

Of course, the withdrawal of the Qi Yuling ruling does not suggest the SPC is on its way to any kind of constitutional reform. While may it may not have been the trendsetter that many hoped, Qi Yuling was at least a symbol of the possibility for change. It?s loss, combined with Wang Shengjun?s continuing emphasis on creating a legal system that measures the political and social climate before coming to any decisions, suggests a distancing from constitutional reform as a whole.

Full post as published by Balkinization on February 23, 2009 (boomark / email).