China Law and Governance Review
    A Publication of China Law and Development Consultants
June 2004 Issue No. 2   
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Heard on the Web
Excerpts of Online Postings in China

Reaction to the Court's Decision in the HBV Employment Discrimination Case.
On On April 2, 2004, the Xinhu District People’s Court in Wuhu, Anhui Province (安徽省芜湖市新芜区法院) issued its decision in the anti-discrimination suit challenging governmental hiring policies and practices which excluded Hepatitis B virus (HBV) carriers from civil service positions. The court, which ruled that the government’s decision to reject the plaintiff was invalid, nevertheless affirmed the validity of the government regulations and refused to order the defendant government agency to re-employ the plaintiff. (See discussions in the “Main Feature” column of this issue) Reactions were mixed in China’s largest online community of HBV carriers, www.hbvhbv.com where the plaintiff (under the pseudonym “Song Yue” (松月)) first sought help and whose members were active supporters of the lawsuit. The following are excerpts of some of the postings on the website:

 Song Yue may appear to have won the case but the verdict does not have any substance. The court seemed to have been caught up between the pressure from the media and its inability to change the current system. It is disappointing!

 Such a farce after all that went into the case. … Song Yue, you have in fact lost the case. I hope you will appeal the decision, not only to fight for your own rights, but for the rights of 130 million of us [HBV carriers].

 This is not a bad decision, thanks to the pressure from the media. If it were not for the amount of media coverage, Song Yue would have lost for sure. The court was really waiting for signals from higher up: If the central government or the Premier had reacted unequivocally, Song Yue would not only have won, he could have gotten his position back. … The purpose for bringing this lawsuit has essentially been achieved. Our primary goal was to raise awareness about HBV and the hardship we face so that the leadership would pay attention to the welfare of the HBV carriers as a whole.

 The verdict is better than expected. It is encouraging that the case ended in the court ruling in Song Yue’s favor. Although the ruling did not substantively benefit the plaintiff, it is a legal declaration that discrimination against HBV carriers by the government is illegal and it will make government agencies think twice before promulgating future health screening policies for [civil service] recruitment. At the very least, we have seen several provinces amend their policies to allow our comrades [HBV carriers] who are not infected with HBV to apply for civil service positions, which represents quite a progress. Obviously this is not the ultimate result we are looking for. So long as discrimination continues to exist and that personal health information continues to be disclosed to employers, our goal of guaranteeing the rights of HBV carriers would still be out of reach.

(Source: www.hbvhbv.com 肝胆相照, April 2, 2004)


Heard on the Web: Will the New Constitution Better Protect Our Rights?
On March 14, 2004, a new constitutional amendment was adopted by China’s 10th National People’s Congress (第十届全国人民代表大会, NPC). The following discussion on Xihuanet (新华网) is a reflection of some of the public’s view on what the new Constitution means to them:

[It means] spending money on lawyers to bring suits and then pay more to thank them.

The Constitution comes from high up but there is resistance from below. Ordinary citizens are powerless about the local authorities who are subject to no control or oversight.

So long as there is not an environment for free press, nothing can protect our constitutional rights. For example, if a high-ranking leader such as Cheng Weigao (程维高) did not like you, a word from him would instantly wipe you off the face of the earth. [Editor: Cheng is the ex-Communist Party chief in Hebei Province (河北省) who was removed from his post on corruption charges]

The implementation of the Constitution requires oversight: oversight within the Communist Party, oversight by the NPC and the National Political Consultative Conference (全国政协委员会), judicial and administrative oversight, as well as monitoring by the media and the public.

The authority of the Constitution can only be maintained in a constitutional system; only then can we expect our constitutional rights be protected.

The central government has made political reform a priority. The current reform is different from the empty slogans of the past and some changes are in fact quietly taking place. Political reform is critical because other reforms rely on it.

How does [the Constitution] define the legal status, legal relationship, authority and responsibilities of organizations such as political parties, the trade unions, the Communist Youth League (共青团) and the Women’s Federation? What is their relationship with ordinary citizens? Whose power and interests stand to gain the maximum protection of the Constitution and the laws? The answer is not clear.

A Constitution is supposed to be a country’s basic law which has the highest authority. But for various reasons, the provisions of our Constitution cannot be invoked by courts as legal basis in adjudicating cases. In other words, the Constitution cannot be used in legal adjudication, nor do our courts have the authority to engage in constitutional review. Thus our Constitution is still quite superficial and hollow. Only when the provisions of the Constitution are “judicialized” can its provisions have any substance. In other words, the NPC and its Standing Committee (人大常委会)need to promulgate corresponding laws; the State Council (国务院), when necessary, will issue regulations based on these laws; and finally if necessary, the Supreme People’s Court (最高人民法院) will issue corresponding judicial interpretations. Only then can courts adjudicate cases based on these laws, regulations and judicial interpretations and therefore provide the only recourse for the rights of the citizens. Legal reasoning tells us that “having rights without recourse is the same as having no rights”.

If there is no liability associated with constitutional violations, the Constitution is nothing but a piece of paper. We urgently need to establish a mechanism of finding such liability.

(Source: Xinhua Forum 新华论坛, www.forum.xinhuanet.com, April 11, 2004)

Heard on the Web: No Laughing Matter—What to Look for in a Job Applicant
What do Chinese employers look for in a job applicant? Perhaps the following joke sheds some light:

I went to visit a friend who runs a successful software company. He was interviewing a college student: “Here is a Rubik’s Cube”, said my friend to the student. “Can you turn the six sides into six different colors, like what I am doing?” The young man was hesitant. “If you need some time, take it home. I will be here until Friday”, said my friend.

Later my friend explained that he had to consider the college student for a position because the student came with powerful backers. My friend was using the Rubik’s Cube to test what position would suit him. “If he takes the cube apart and rearranges the pieces, he is bold and decisive. I would send him to marketing. If he paints the six sides in different colors, he could be a good software developer. If he can solve the problem by this afternoon, he is very smart and has good comprehension. I would ask him to be my assistant. If he completes the puzzle before Wednesday, he must have had help, which means he is popular. He can work in customer service. If he can solve the problem by Friday, he is a hard worker and can be a low-level programmer. If he comes back and says that he was unable to find a solution, he is honest. He can be my accountant. If he does not come back, then there is nothing I can do for him.”

The next day, I saw my friend again and asked him about the Rubik’s Cube. My friend looked quite pleased with himself, “I must hire that kid. He returned the cube to me this morning. Guess what, he bought me another one! He said that he could not find a solution so he bought a bigger and better one for me.” I asked, “What does that tell you?” My friend lowered his voice, “He will be great for pirating software!”

(Source: Originally from Blogchina.com, reprinted on Powerful Nation Community 人民网强国社区, http://bbs.people.com.cn, April 16, 2004)



 
 

 


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