why theQi Yulingcase, discussed below, was submitted directly to the Supreme
People’s Court. Hence, scholars of the second approach would rather focus on
other key institutions. For example, in theSun Zhigangcase scholars appealed to
the Standing Committee of the NPC (SCNPC) to annul an outdated adminis-
trative regulation that was evidently inconsistent with the Constitution. Since the
SCNPC is more powerful than ordinary Chinese courts and may, to an extent,
resemble the Continental model of constitutional review, say, only a special organ
within or outwith the judiciary may exercise that power.
TheQi Yulingcase
In this decade we have witnessed the dramatic attempt of the Chinese judiciary to
cite constitutional provisions in judgments, as was previously prohibited by two
judicial references issued by the Supreme People’s Court. On 30 July 1955 the
Supreme People’s Court, in replying to a question of the Xinjiang Higher People’s
Court, clarified that the Constitution, as the basic and ‘maternal’ law, does not
prescribe specific crimes and punishments, and it is not appropriate to cite consti-
tutional provisions in ordinary convictions.
12
In 1986 the Supreme People’s Court, in
another reference to the Jiangsu Higher People’s Court, entitled Reference to
People’s Court on Citation of Legal Documentation, instructed the judiciary that
legislative acts of the NPC and its Standing Committee, as well as administrative
regulations of the State Council, shall be cited in civil judgments; regional regula-
tions of provincial people’s congresses or regulations of ethnic autonomous regional
people’s congresses shall be cited in cases where parties both reside in the respective
administrative unit; other regulative documentations shall not be cited explicitly in
judgments.^13 The twin references illustrate the fact that in the Chinese mainland no
court cites constitutional provisions in either criminal or civil judgments. In this
sense, the Constitution is not ‘living’ in the Chinese judiciary.
However, the rare case ofQi Yuling, involving two females living in the same
village, presented an opportunity to ‘activate’ the Chinese Constitution. Qi Yuling
was intelligent, but Chen Xiaoqi was privileged because Chen’s father was the party
chief of their village. In a state-run examination, Qi’s marks enabled her to attend a
local college. The college’s offer was accompanied with urban residentship, which
means the permanent right of abode in a Chinese city, the entitlement to public
posts, etc. Chen failed the examination; her father colluded with her middle
school, college and local education commission so that Chen would be accepted
by the college under Qi’s name. Subsequently, Qi was told that she had not been
(^12) Supreme People’s CourtYanzi(Zuigao renmin fayuan yanzi) No 11298 , issued on 30 July
1955.
(^13) Reference to People’s Court on Citation of Legal Documentation (Zuigao renmin fayuan
guanyu renmin fayuan zhizuo falu wenshu ruhe yinyong falu guifanxing wenjian de pifu),
issued on 28 October 1986.