The People's Court of Wuhou District in Chengdu, capital of Sichuan Province, accepted a case involving right to equality based on Constitution on January 7, which represented the first of its kind in China. Zhou Wei, plaintiff attorney and associate professor with the Law School of Sichuan University, believes with the case entering legal proceedings, its significance is beyond whether or not it can win, as both the defendant and plaintiff can greatly contribute to the Chinese law.
On December 23, 2001, Jiang Tao and his classmates at the Law Department of Sichuan University read an advertisement for new staff of the Chengdu Branch of the People?s Bank of China (PBOC). One requirement reads: "Male applicants shall be above 168 cm in height and female applicants above 155 cm." "We felt bad and discriminated against after reading it," said Zhou, who is 165 cm. They decided to safeguard their constitutional right?the right to equality?through legal means.
Finally, Jiang individually entered into the lawsuit against the PBOC Chengdu Branch, as the others were busy either preparing for a postgraduate course examination or looking for a job.
He submitted a complaint to the People's Court of Wuhou District, which says: The administrative action of the defendant (PBOC Chengdu Branch) in recruiting public servants violated the provision of Article 33 in the Constitution that "all citizens of the People"s Republic of China are equal before the law." The action restricted his qualification for application and infringed upon his right to equality and political right to be employed as a public functionary in accordance with the law. The defendant should assume corresponding legal liabilities. He asked the court to confirm the administrative action containing "height discrimination" as illegal and rule that the advertisement with such content stop to be published.
The plaintiff believes that as 40 percent of men in Sichuan are shorter than 168 cm, the decision of the PBOC Chengdu Branch Bank to set a condition on the height of new employees is illegal, because it lacks authorization of legal stipulations and the job has no connections with a person?s height. The act infringed on the right to equality of those men who are below 168 cm and women below 155 cm, but qualified in other aspects.
For Jiang, the most important reward from the case is that "it is the first time that I ever felt the effect of the Constitution. From now on, I will feel confident in challenging and opposing any discriminatory action involving height, appearance, gender and residence registration."
Zhou said that it is bad to see the common occurrence of infringements on the right to equality in the country. The establishment of a constitutional procedure system should be accelerated through many specific cases so that citizens can obtain legal assistance when their constitutional rights are infringed upon, said Zhou, adding that this is why he insisted on bringing the case to court.
On January 10, the PBOC Chengdu Branch renewed its advertisement, this time without the height restriction. While expressing his satisfaction over this, Jiang said he was not going to withdraw the charge.
The case has become a focus of attention and disputes in law and academic circles and the media.
Can an Action be Brought Based on the Constitution?
Wang Lei (Associate Professor with the Law School of Peking University) and Wang Zhenmin (Associate Professor with the Law School of Tsinghua University): Yes, it can. It is not an ordinary labor relationship between administrative organs and public servants, to which the Labor Law is not applicable. Being employed as a public servant involves the right to work as well as a political right, because every citizen, who is qualified, has right to participate in the administration of State affairs. The height restriction infringes upon the right to equality and further infringes upon a political right?the right of citizens to hold public employment. The principle of rule of law is that infringement leads to lawsuits. However, there are a great number of infringements that cannot be brought to a lawsuit. When administrative procedures fail to provide effective assistance to citizens, the Constitution has to be invoked to find a legal basis.
Cai Yaozhong (a lawyer with the Beijing Weiheng Law Firm): No, it can't. In my opinion, we should not deduce a concept of right to equality from the provision of Article 33 in the Constitution, which stipulates: ?All citizens of the People's Republic of China are equal before the law." That all citizens are equal before the law should only be interpreted as citizens being equal in terms of applicable laws or in enjoying legal protection and performing legal obligations. Height restrictions infringe on the right to work but not the right to equality. In my view, the plaintiff may bring the action based on the right to work.
Mo Jihong (a researcher with the Institute of Law Science of the Chinese Academy of Social Sciences): It should be dealt with prudently. The current system has failed to properly deal with the restrictive relationship between rights as well as laws. Administrative procedures safeguard the authority of legislative organs, while constitutional procedures likely lead to judicial organs challenging the authority of legislative bodies. If final adjudications on cases involving constitutional procedures are made at local court and none of such cases needs to be brought to the Supreme People's Court, it would mean that the local court could challenge the State legislative bodies.
Therefore, judicial organs should respect the authority of legislative bodies during the application of law. The Constitution could be employed only under two circumstances. One is inaction of legislative bodies; for instance, legislative bodies fail to interpret the principles in the Constitution into concrete laws and regulations. The other is the occurrence of legislative crisis; for instance, in case legislative bodies deny that everyone is equal before the law, judicial organs would have to skip laws and regulations and apply the Constitution.
Equality: A Principle or a Right?
Fei Anling (Professor with the China University of Political Science and Law): Equality is not an independent right but a fundamental principle. Nowadays, there is a tendency to regard everything as a right. As a matter of fact, it generalizes rights, which, I'm afraid, will be depreciated. In my opinion, the height restriction infringes upon the right of equal employment by way of height discrimination. In fact, the right of equal employment means the right of natural persons to equally participate in competition and subsequently bring their working ability into play. I deem such a right to be a private one.
Wang Zhenmin: Equality is a type of right. In the current legal system, more demands of citizens have been compressed into the scope of personal and property rights. For many years, court staff thought personal and property rights are the only rights of citizens. Equality can be divided into political equality and social equality. In China, political equality, such as the right to vote and stand for election, has been well guaranteed while social equality is far from being developed. Social practices are full of discriminatory regulations. For example, male workers are entitled to housing allocation, while women workers are not; there are differences between urban and rural residents; and college admission marks vary in different regions. These social phenomena contribute to inadequate social equality, which reflect that protection of social equality is far from adequate in terms of legislation.
Jiao Hongchang (Associate Professor with the Law Department of the China University of Political Science and Law): Equality becoming a legal right is an outcome of the practice of the rule of law. Initially, equality was just a legal concept. Along with the social development, it has been regarded as a legal principle and further become an independent legal right. Only as a legal right can equality obtain judicial assistance. Everybody being equal before the law means the equality not only in terms of practical laws, but also in terms of legislation.
How to Realize Legal Assistance?
Mo Jihong: This case reflects deficiencies existing in the current legal system. Firstly, the system of legal assistance is incomplete; the system of right to action has been restricted to a great extent. Lots of rights could be offered, however, assistance could not be guaranteed when needed. Secondly, legal assistance mechanisms are not associated with each other, leaving many blank spaces. Thirdly, legal assistance itself is not scientific enough, and procedures are irrational. The right to action of interested parties cannot be guaranteed through the system. In a word, the relationship between the State power and citizens? rights has not been dealt with within a legal framework.
Dr. Chen Xinxin (with the Institute of Law Science of the Chinese Academy of Social Sciences): A court cannot refuse to put a case on file on the pretext that there are no legal provisions. Parties concerned have the right to take an action with regard to some cases. Justice is the last channel for the guarantee of human rights. The existence of blank spaces means the failure of a judicial system. How to guarantee the rights of interested parties is the first question to be considered and answered by the court.
(Beijing Review February 26, 2002)
