Administrative litigation as a stragtegy of improving constitutional rights in China
Wang Xixin, Professor, Peking University Law School, Associate Chief Judge, Administrative Division of the Supreme People's Court
Although there are generous words in the constitution promising constitutional rights, those constitutional provisions are not allowed to be applied by courts in handling cases. Accordingly, constitutional rights can not be enforced by the courts through direct application of constitutional provisions in individual cases. In 1990, the Administrative Litigation Law (hereinafter the ALL)casted a slim of light into the sky that may shine a new hope of judicial safeguards for constitutional rights. Under the ALL, individuals can challenge government actions in courts, and courts are authorized to review the legality of government actions. This judicial review of administrative actions provides courts the legal mechanisms and capacity to review cases in which constitutional rights might be the very legal issue in question, such as property rights, freedom of speech, right to equality, and some economic, social, and cultural rights. By introducing fundmental principles into the judicial review ideology and interpreting norms such as laws and administrative rules, court my activate the words of constitutional rights without direct reference to the constitution, thus provides a modest source for improving a strategy to protect constitutional rights in the transitional period.