Sunday, February 26, 2012

Part XX—Zhiwei Tong (童之伟) Series: A valuable step in advancing the protection of constitutional rights

 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.
The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.

       (Pix (c) Larry Catá Backer 2012)

Part XX—Zhiwei Tong (童之伟) Series: A valuable step in advancing the protection of constitutional rights
(originally published on Fazhi Daily, March 2003 Published on Tong’s Blog: October 03 2010)

According to the report from the website Chinanews, the major of Beijing, Guo Jinlong has signed on May 06 2010 the “Order of the People’s Municipal Government of Beijing”(Number 220), abolishing the outdated “Regulations on Student Enrollment Status Registration of Middle and Elementary Schools” which had been in effect for more than a decade. Relevant department of the Municipality of Beijing, later confirmed that after the abolition of the old Regulation, children coming along with their parents who work in the city of Beijing, now may also enjoy the same treatment of unexamined enrollment in nearby schools within their neighborhood of residence as children and teenagers of Beijing. Starting now, the city government will ensure a place to study for every migrant child in the capital, to let them enjoy the same treatment of compulsory education as children living within the same city. Under the new rules, the children of non-local persons will be able to register for school enrollment card and apply for admission with the card, as long as they have an actual place of residence in Beijing , temporary permission of stay and not in “black status” (unregistered---translator). The city authorities also confirmed that the Board of Education of various districts or counties of Beijing will, in the development of their enrollment program, assign an enrollment area for every school within the compulsory education system, to make sure that students can attend the nearest school.

It goes without saying that in the view of the Constitution there is no difference between citizens of rural or urban household registration[1], every single Chinese citizen, including children and teenagers, enjoy equal access to education and other basic rights. Article 33 of the Constitution provides: “All citizens of the People's Republic of China are equal before the law,” Article 44 (Should be Article 46---Translator) of the Constitution provides: “Citizens of the People's Republic of China have the duty as well as the right to receive education.” Evidently, every citizen, whether his or her of household registration is rural or urban, his or her right to receive education is equally protected by the Constitution.

However, for a long time, due to unbalanced development in urban and rural areas, the protection level of the right to education for rural children and teenagers has been far lagging behind the city level, and the barriers due to household registration make a large number of children of migrant workers in primary and secondary education level, trapped in difficult situation almost as if they were decedents of the "untouchables." China's household registration system is characterized by the division of the citizenry into rural and urban identities of which the differences are fixed. This type of household registration system which creates barriers between rural and urban citizens violates the spirit of the Constitution; it is also very outdated and unreasonable. In China, the household registration system actually existed since the ancient times, at that time, under natural economy, it served to the purpose of the state to better control and collect taxes from its subjects by forcing them to live permanently on the same land. From the point of view of the modern constitution, its emergence and existence, precisely blocked the freedom of movement of the subjects. In contemporary China, planned economic system, implemented once for more than 40 years, required to include the labor force, the most active economic factors, within the planning and execution of commands from the central authorities. The state had to implement the household registration system to block citizen’s freedom of movement, as it would have done in a natural economy. However, the existing household registration system is contrary to the principles of the Constitution on "The state practices socialist market economy" and "the state respects and ensures human rights.” The key to understand this point is to know that the labor force, different from other economic sources, can only exist in physical or mental form. Therefore the constitutional meaning of the state seeking to include labor force within the boundaries of a designed plan as a economic resource, is to let the state organs control and dominate citizens. Although the household registration system has become weaker now days, its original nature did not change.

The inequality of school enrollment in the city of residence and barriers of household registration encountered by children of migrant workers, have already created severe social inequality and social problems, and they have also hindered the improvement of labor productivity and the quality of the nation as a whole. Our country is going through a colossal scale urbanization process rarely seen in history, a humongous number of labor population has moved or is moving into the cities and their children are generally in the age to receive the compulsory education. These migrant workers live, work and pay taxes just like local citizens in cities where they work, but only because of the artificially divided rural household registration, their children cannot attend schools equally within the city. This is evidently unfair to them. We should be aware of the fact that when Chinese citizens go aboard and live, work or study in many different countries, children and teenagers going along with them can all enjoy the treatment of equal school enrollment in the area where they live, a main reason is that they purchase or rent house and consume in that same place, fulfilling taxation duties, so they deserve corresponding rights. Why in our country citizens of rural household registration moving to live, work or study in another city, the right to education of their children is actually worse than the treatment in foreign countries? Isn’t this situation awful?

In our country, a large number of school-age children of migrant workers had to be "left behind" in their villages; many children who moved to cities along with their migrant worker parents do not have equal right to education or even completely dropped out of school. This situation is a closely observed social problem concerned by many people of insight since early times. This situation will inevitably have a negative impact to the mental soundness, technological and cultural qualities of our nation as a whole

The Municipal Government of Beijing had made a valuable step in advancing the protection of constitutional rights of citizens, by breaking the barriers created by household registration that obstacles elementary and middle schools enrollment.

First, we have to praise Beijing Municipal Government’s respect for constitutional civil rights and its pragmatic spirit to put them into practice. The community has been concerned and discussing for many years the problems of the constitutional rights being neglected and unfair treatment of migrant workers and their children in cities where they live, but no city took institutionalized measures to solve these problems. Now, this curse has finally been broken by Beijing’s abolishment of the old “Regulations on Student Enrollment Status Registration of Middle and Elementary Schools.” Secondly, it should be acknowledged Beijing’s determination to reform and pioneering spirit. Any reform involves adjustment of vested interests, and it has to overcome difficulties brought about by new initiatives. Having broken the barriers of middle and elementary school enrollment, it is inevitable for the city of Beijing to overcome some difficulties in terms of construction of basic infrastructure and teaching staff, and to encounter challenges never faced before. Therefore, it was really not easy for them to make this step. Thirdly the action by Beijing’s Municipal Government to break the barriers to middle and elementary school enrollment, in the long run, will gradually and radically help improve the living conditions of the families of migrant workers and ease social tensions, because the right to education is one of the basic rights of citizens, improvement in protecting this right implies that relevant subjects of rights have obtained better social environment for survival and development.

What must also be seen is that the elimination of household registration barriers to help children of migrant workers enroll in school, itself, shows the emergence of another long-expected constitutional right, this constitutional right is the freedom of movement. The economic content of the freedom of movement is the free buying and selling of the labor, and the elimination of household registration barriers for school-age migrant children is a necessary institutional condition for migrant workers to sell on the market their own labor. China's 1954 Constitution had recognized citizens' freedom of movement, but then the gradually formed planned economic system did not allow citizens to enjoy this basic right. Therefore, the state has first established the household registration system, caused and fixed the division between the citizens of urban and rural identity, then it officially removed the freedom of movement from the list of fundamental rights in the Constitution of 1975. China’s 1978 Constitution and the Constitution of 1982, born also in the general setting of the planned economic system, maintained naturally the pattern of the 1975 Constitution which did not recognize the freedom of movement as a fundamental right of citizens. According to constitutional theories, when China passed the 7th amendment to the Constitution providing that: “the state practices socialist market economy, " it should at the same time restore the content of protecting citizen’s freedom of movement of the 1954 Constitution. But unfortunately, due to various reasons, this fundamental right of citizens essential for the market economy has not yet been guaranteed by the Constitution even today. However, since 1993, although the state has not committed to protect citizens’ freedom of movement in the Constitution, it did, in practice, help citizens expand the freedom of migration in many areas. Beijing’s initiative to eliminate household registration barriers to middle and elementary school enrollment process is an integral part of the accomplishments of the public authorities in this regard. These accomplishments will contribute to a more rapid process to include the freedom of movement within the scope of fundamental civil rights protected by the Constitution.

We have reason to be convinced that the decision by Beijing’s Municipal Government to eliminate household registration barriers will form a role model effect. In this regard although the Municipal Government of Beijing is only fulfilling its constitutional duties as it is supposed to, since Beijing has done it when no other cities did it , we can totally consider such action a righteous one. “The power of example is infinite,” it will encourage cities that have already intentions to do so but not yet put them into actions, it will also give pressure to cities that have not yet thought about this problem. Faced with the righteous action of the Municipal Government of Beijing, the administrative authorities of other cities would not ignore or choose to not to react at all.

We also have reasons to expect that all state organs will sooner or later act as the Municipal Government of Beijing, cleaning and abolishing provisions in relevant normative documents contrary to the provisions of the Constitution, especially those provisions that form obstacles to the implementation of constitutional civil rights, within the range of their functional power. Revealed evidences show that this kind of provisions exit in laws and executive norms; normative documents of lower rank and even normative documents without an official status contain such provisions to some extent as well, while the “Unspoken Rules” contain even more. In the foreseeable future, concrete initiative to advance the protection of constitutional civil rights, such as the action of Beijing Municipal Government to clean and abolish normative documents or their relevant provisions, has a more practical meaning compared to constitutional amendment or establishment of new laws to protect constitutional civil rights. In that regard, the Municipal Government of Beijing has been a good leader.

Of course, it is difficult to abolish old rules and make new regulations, but it is even more difficult to implement new rules in real life without discount. Hope the implementation of the Beijing Municipal Government’s abolition of middle and elementary school enrollment barriers and new rules of unexamined enrollment to nearby schools goes smoothly.

[1] Translator’s note : Also known as Hukou, a household registration record officially identifies a person as a resident of an area and includes identifying information such as name, parents, spouse, and date of birth. People who worked outside of their household registration domain or geographical area would generally not qualify for employer-provided housing, health care and education for their children. With its large rural population of poor farm workers, Hukou limited mass migration from the land to the cities to ensure some structural stability.

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