The tragic death of Sun Zhigang, a 27-year-old graphic designer from Hubei Province, has been etched into the country's constitutional development.

In March last year, he was mistaken as a vagrant and detained in the southern city of Guangzhou, as he had not brought with him his temporary residency card or identification card. Several days later he was found dead. He had been beaten to death by inmates while in a repatriation centre.

In June one nursing attendant in the repatriation centre was sentenced to death for his leading role in Sun's death. One of the inmates was given a suspended death sentence.

Ten other inmates received sentences of up to life imprisonment for their roles in the homicide.

Another six people, including a policeman, two doctors, two nurses and the person in charge of the repatriation centre were sentenced to prison terms of two to three years for neglecting their duties.

Subsequently, Sun's case has made a difference in the lives of hundreds of millions of Chinese who live and work outside their hometowns.

The State Council finally rescinded the "Regulation on the Detention and Deportation of Vagrants and Beggars in Cities," which, introduced in 1982, allowed local police to detain people who could not produce local residency permits.

The government was widely criticized for exceeding its authority in taking measures to restrict personal freedom without legal basis.

According to the Law on Legislative Procedures, which went into effect on July 1, 2000, only the national laws apply in settling issues concerning individuals' political rights and personal freedom.

Responding to mounting public demand that it rectify its constitutional oversight, the NPC Standing Committee set up a new agency within its legislative affairs commission last month.

Its job is to review whether legislation or a government or court decision accords with the stipulations of the Constitution.

This is the latest effort by the nation's top legislature to address the problem of conflicting legislation, a hot topic among legal professionals for the past two decades.

Xu Zhiyong, a 31-year-old lecturer in the Law Department of the School of Humanities Law and Economics at Beijing Post and Telecommunications University, has made his own contribution to this development.

Together with two other scholars with law doctorates, Xu submitted a written appeal to the NPC Standing Committee to review the constitutionality of the administrative regulation on urban vagrant management after the brutal death of Sun.

The Law on Legislative Procedures stipulates individuals have the right to request the NPC Standing Committee to review conflicting legislation.

Xu attributed the success in abolishing the regulation to the wide coverage of Sun's death by the media, indicating that the current legislative review mechanism still has a lot of room for improvement.

"We hoped our action would activate such a response to the law and make the top legislature review the regulation worked out by the State Council," Xu said.

The abolishment of the regulation saved the NPC Standing Committee from having to review the legislation in accordance with law and somewhat eased the increasing pressure on the top legislature to honour its constitutional duty to safeguard legislative unity throughout the country.

"The result was good, although it ended in a typical Chinese way," he said, adding that social progress takes time.

"I hope the new agency will take citizens' suggestions seriously and respond to them promptly," Xu said.

Checking conflicting legislation

Wang Zhenmin, vice-director of the Law School at Tsinghua University, said conflicting legislation, which is still common in this country, often hinders the development of the market economy.

Du Gangjian, a professor of administrative law with the National School of Administration, said such conflicts pose a serious challenge to the country's efforts to build a unified market economy.

He said a unified and equitable legal system is the prerequisite for unified market order and that the dignity of national laws should be strictly safeguarded.

"Ambiguous, poorly designed regulations make it difficult for both ordinary people and judges to make decisions, leading to uncertainty in transactions affected by the legislation," Wang said.

Wang's remarks may well have been made in response to an encounter involving Li Huijuan, a judge in Luoyang Intermediate People's Court, in Central China's Henan Province.

Last year Li came across a legal conflict involving the national Law on Seeds and a provincial regulation on seeds issued by the Henan People's Congress when presiding over a civil case in which compensation for the alleged failure to honour a corn seed contract was in dispute.

Li was virtually fired after challenging the authority of the local people's congress.

Judge Li, with a Master's Degree in law, gave his carefully worded verdict in October, 2003, saying the clause in the local regulation, which contradicts the national seed law, is "automatically invalid, because the local regulation is lower than the national law in the legal hierarchy."

The Henan Provincial People's Congress Standing Committee later issued a notice claiming Li's ruling was an "illegal review of the local regulation in nature and encroached on the functions of the legislative body."

But both the Constitution and the Law on Legislative Procedures stipulate local regulations should not contradict national laws.

This case again triggered debate on whether China should establish a judicial review mechanism, a long-debated topic in the legal profession.

Wang Zhenmin said the conflicts in legislation are caused by the multi-layer lawmaking mechanism.

Although the Constitution states the NPC and its Standing Committee exercise the power of lawmaking, the State Council, not only local people's congresses but also administrative departments at both central and local levels are entitled to make regulations within their jurisdictional areas.

It is often the case that one issue is governed by two or even more different regulations, sometimes with substantially different stipulations.

"Beneath the conflict of legislation lies the conflict of interests of different departments and local administrations and, in a word, power distribution," Wang said.

Wang said the country should improve its mechanism for dealing with constitutional oversights to prevent constitutional violations and reduce if not eliminate legislative conflict.

He suggested that the top legislature consider establishing a Constitutional Committee or a Constitutional Court that would guard against constitutional violations and undertake a function similar to the judicial review system in the common law system.

The term judicial review refers to a constitutional doctrine that gives the court system the power to annul legislative or executive acts which the judges declare unconstitutional.

More efforts needed

In the common law system, which was developed in England, courts have the right to review the constitutionality of legislation and can refuse to apply unconstitutional legislation.

In the civil law system, which may be traced back to Roman law, from which most European legal systems originated, judicial reviews are usually handled by a constitutional court or constitutional committee.

In China there were vague procedures for the review of laws before 2000 when the Law on Legislative Procedures was endorsed.

The Law on Legislative Procedures empowers citizens and administrative and judicial bodies to submit written requests to the NPC Standing Committee for final review of conflicting legislation.

It is a way to supervise implementation of the Constitution and laws when a judicial review mechanism has not yet been established in this country.

In Li's case, four lawyers sent a written proposal to the NPC Standing Committee in November 2003 suggesting the top legislative body should review the validity of the local regulation and issue a prompt rectification of administrative regulations and local legislation that conflict with the Constitution and laws of the country.

So far, no progress has been made in Li's case.

Wang said the new agency set up by the NPC Standing Committee should conduct its legislative review in a transparent fashion.

"I think they should conclude each case with a formal written judgment supported by adequate reasons, instead of solving the problem behind close doors," Wang said.

Source: China Daily