Lawyer Petitions For Constitutional Review Of Discriminatory SPC Interpretation

Zhou Wei, a Sichuan University law professor, has asked the Legislative Affairs Commission (LAC) of the National People's Congress Standing Committee (NPCSC) to review the constitutionality of a 2003 Supreme People's Court (SPC) judicial interpretation that discriminates between urban and rural residents on the basis of their household registration (hukou) status, according to a April 21 Sichuan Online article.

Professor Zhou submitted the petition on behalf of the family of He Yuan, a Sichuan schoolgirl killed in a traffic accident on December 15, 2005, when a truck collided with the vehicle on which Ms. He and two classmates were riding. The trucking company settled with the families of the other two victims, who held urban hukou, paying them 200,000 yuan (US $24,700) each. The company, however, offered less than half that amount to the family of He Yuan, who held a rural hukou. Despite their rural hukou status, He Yuan's father works as a butcher in urban Chongqing, and Ms. He had resided there for 10 years. The trucking company calculated its settlement offer based on the 2003 SPC judicial interpretation, according to a January 24 Procuratorial Daily article.

Article 29 of the 2003 Supreme People's Court's Judicial Interpretation Regarding Compensation Cases for Personal Injuries says that courts must set compensation for deaths in personal injury cases at 20 times "the average annual disposable income of urban residents or the average net income of rural residents in the jurisdiction where the case is heard." An urban Chongqing resident averages 9,221 yuan (US $1,140) in annual disposable income, while rural Chongqing residents average 2,535 yuan (US $312) per year in net income, according to a January 27 Xinhua article. Professor Zhou said "Article 29 [of the SPC Interpretation] requires that compensation for deaths be determined on the basis of citizens' hukou status, and distinguishes between urban and rural. This has led to a difference between the compensation award for rural and urban hukou holders that can be as large as a factor of four. This violates article 33(2) of the Constitution, which provides for the equality of all people before the law," according to the Sichuan Online article.

Professor Zhou's petition is an effort to use an NPCSC procedure established in 2004 that allows citizens to submit requests for constitutional review of regulations that conflict with the Constitution and national law. China's Constitution vests the power to interpret and enforce the Constitution in the NPCSC. Under China's Legislation Law, government agencies may initiate a detailed review process of the constitutionality and legality of national laws and regulations by the NPCSC's Legislative Affairs Commission. Ordinary citizens, however, may only submit proposals for constitutional and legal review to a screening office under the LAC. In December 2005, the NPCSC passed the "Working Procedures for the Filing and Review of Judicial Interpretations," extending these constitutional review procedures to SPC judicial interpretations. For more information, see section V(b), Legal Restraints on State Power, of the Commission's 2005 Annual Report.

Chinese laws and regulations that condition citizens' legal rights and public benefits on their hereditary hukou status conflict with China's international commitments on non-discrimination, particularly regarding migrants residing in urban areas who hold rural hukou. Article 26 of the International Covenant on Civil and Political Rights (which China has signed but not ratified) guarantees equal protection of the law and non-discrimination based on "national or social origin . . . birth or other status." Article 2(2) of the International Covenant on Economic, Social, and Cultural Rights (which China has both signed and ratified) also bars discrimination in fields such as employment, education, health, social security on the same grounds. For more information on hukou barriers, see the Commission's recent topic paper on the subject, the chart of various national and provincial hukou reforms through the end of 2004 on the Freedom of Residence page of the Commission's Web site, the Freedom of Residence and Travel section of the Commission's 2005 Annual Report, and the corresponding section of the 2004 Annual Report, and the Commission's roundtable on hukou reform.

Local Chinese courts have responded to the 2003 SPC interpretation in different ways. Some courts have applied Article 29 strictly, and reduced compensation to rural hukou holders regardless of their length of residence in an urban area. Other courts have applied urban standards to calculate compensation awards to rural hukou holders. The Sichuan Online article notes that the Anhui High People's Court has issued a decision mandating that courts apply urban personal injury calculation standards in cases involving minor children who hold rural hukou and study and live in urban areas. The article also cites an unnamed official of the Sichuan High People's Court as saying that Sichuan courts have in practice adopted a standard that applies urban compensation standards for migrants who can offer proof of residence in an urban area for at least one year.