Rule of Law as a Watermark
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hire the plaintiff based on his HBV status lacked sufficient evidence. The court refused to grant Zhang’s request to enter the civil service on the ground that the recruitment period was over. However, the court failed to invalidate the discriminatory government regulation on constitutional grounds. A decade later, the judicial decision has not been enforced, but the trend in recent regulations regarding public hiring and university admission has mandated that physical tests for employment screening not include testing for HBV.
A Weak Constitutional System In China, the lack of respect for the constitution is explained by the de facto absence of a hierarchy of norms (despite a clear theoretical definition of the “sources of the law” [ fa yuan]), resulting in confusion both in the organization and in the legal texts, administrative regulations, and decrees. It can also be explained by the lack of a clear conception of the position of the constitution in the hierarchy of the normative system, despite unambiguous terms used to designate it, such as the “fundamental law” ( genben dafa) or the “mother of all laws” (mufa). The constitution in truth is an abstract political document remote from people’s daily life and social operation. The government and the CCP have a long history of using policy rather than law to steer social development. Every change or amendment of the constitution is initiated by CCP policy changes. This practice results in paying lip service to the constitution and marginalizing its legal function. The constitution then serves as a footnote to party policy and governmental practice. There are numerous examples of liberties taken with the text of the constitution and of legal deadlock arising from social complexity and confusion of the legal system due to the absense of consensus on the effective sources of the law. The lack of respect for the constitution testifies to the historical lack of respect for the hierarchy of norms in general, due to their nonexistence in both practical and conceptual terms. However, since the Law on Legislation in 2000 established a principle of unity of the legislative system and initiated a hierarchy of norms, the constitution is theoretically at its highest position. The next challenge lies in the political courage of the government and the CCP to respect the constitution not only in words but in action.27 Another means is to entrust the Supreme People’s Court with a role that is neither recognized in the political system as a whole nor compatible with its present organization, given that the existing system is one of an a posteriori and legislative review of the constitution through the work of the National People’s Congress. While debate on constitutionalism is very rich, it has not yet been followed by any official call for open debate or adoption. Probably in May 2004, the Law and Regulation Filing Office (Fagui shencha bei’an shi) was created 27 See Cai Dingjian & Wang Chenguang, China’s Journey toward the Rule of Law: Legal Reform, 1978–2008 (Brill 2010).