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.”

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. In a summary announcement in December 2008, the SPC abolished the case, yet interest in the saga of the case persists. 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, 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.”

Marbury was a seemingly simple case. 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 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 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. 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 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 Qi 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. 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, 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 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. 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. 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). The seeming “adoption” of Marbury may be a back-door approach to advocating adoption of the CGJ system, without any explicit acceptance. 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.

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. 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). Indeed, the word “interpretation” itself is contested and problematic. 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.

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 — to “say what the law is” — the famous dictum of Marbury. The 2001 SPC bound volume of the Gazette contains the Qi decision.

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 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.