According to the new management regulations coming into effect
on March 1, four types of people are forbidden from managing or
working in entertainment venues.
They are: A) people with criminal records relating to rape or
sexual harassment; organizing, seducing or forcing women into
prostitution; printing and selling obscene publications;
manufacturing and trafficking drugs; gambling; money laundering;
organizing and participating in criminal networks; B) people who've
been deprived of their political rights for criminal offences; C)
those who have a history of being compelled to give up the drug
habit; and D) people who've been detained for prostitution or going
whoring.
Suggesting the above provision violates the Constitution, two
lawyers from Chengdu, capital city of southwest China's Sichuan Province, Xing Lianchao and Sun Lei,
sent letters on March 16 to the Standing Committee of the National
People's Congress (NPC) and the Standing Committee of Sichuan
Provincial People's Congress seeking a review on the legality of
the move.
"I often come into contact with criminal suspects with bad
records in my daily work and plead for their rights, and therefore
I'm inclined to look at things from their standpoint," Xing told
China Youth Daily in an interview on March 20.
He contends that after acquiring skills all citizens should have
the same employment rights. "Working at entertainment venues does
not require significant qualifications and should not be limited by
whether people once took drugs or were involved in
prostitution."
Xing believes that a record of committing a crime and being
punished is only proof of a past mistake.
"Those with blemished records can be transformed into people
useful to society. Therefore, the government does not have the
right to limit their employment opportunities," he noted.
Two law experts gave their opinions on the case on March 20
following the request for a constitutional review by the two
lawyers. One is Cai Dingjian, a professor at China University of
Political Science and Law and a leading constitutional scholar, and
the other is Hu Jinguang, a professor from the School of Law at
Renmin University of China.
Both Cai and Hu have agreed that the provision cannot be
regarded as a violation of the Constitution and therefore it
remains a question as to whether a review is necessary.
"The two lawyers are well-intentioned," Cai said, "but they have
to be cautious in judging whether a regulation has violated the
Constitution."
He said that according to established principals, certain laws
and regulations can set some limits on citizens' basic rights
stipulated in the Constitution, but the key point lies in whether
the limits are reasonable and necessary.
Restricting four kinds of people from managing or working at
entertainment venues touched upon whether the limitations have
constituted employment discrimination and infringement upon
citizens' employment rights, Cai noted.
"The regulations aim to ensure that these entertainment venues
are operating legally and securely," he said. "From this point of
view the provision is, to a certain extent, legitimate and
reasonable."
However, he said, the provision did not make itself clear on
some points, particularly failing to identify what entertainment
venues actually were. Were they singing bars, massage parlors or
other places that operate at the night and can easily become
involved in pornography, gambling and drugs? Or were amusement
parks, activity centers for senior citizens and children, video
rooms and bars also included?
Cai observed that among the four types of people, as far as
their illegal activities are concerned, those who'd been in
detention for prostitution or going whoring are quite different
from the other three. However, the regulations treat them all in
the same way, which has raised doubts about the fairness of the
system.
Below the Constitution there are laws, administrative statutes
and local regulations, Hu explained. According to the Legislative
Law, administrative statutes and regulations are drawn up based on
the Constitution and related laws.?
Therefore, "To judge whether the regulations on the management
of entertainment venues are legitimate we have to check whether
citizens' equal rights to employment stipulated in the Labor Law
have been violated," Hu said.
The regulations place restrictions on certain occupations where
consideration is given to the morality and integrity of the
practitioners. Any restriction can only be legitimate when there
are good reasons for it and it's not excessive, Hu said.
Prejudging the four kinds of people haven't met the employment
requirements, the regulations thus excluded them from managing or
working in entertainment venues, which cannot be explained away, Hu
added.
Zhu Liyu, a professor from the School of Law at Renmin
University of China, views this issue in the perspective of
'equality of legislation'.
When understanding the constitutional principal of "All citizens
of the People's Republic of China are equal before the law," there
is basically no disagreement on that all citizens are equal in the
application and abidance of law but opinions differ on whether all
citizens are equal in legislation, Zhu pointed out.
Citizens' equality in legislature stipulated in the Constitution
and other laws is relative, Zhu said. When the state sets limits on
some rights through laws it cannot be generally called to have
violated the Constitution. "Concrete conditions require concrete
analyses," he added.
In recent years there have been many media reports about
ordinary citizens asking for a constitutional review on a number of
laws and regulations.
Hu Jinguang admitted that there were defects in the design of
the constitutional review system. For example, the Legislative Law
is not precise enough in specifying who are qualified to request
such a review. It states that all ordinary citizens can make a
request to the NPC and its Standing Committee -- something not seen
in any foreign countries.
Cai echoes Hu's opinion. He said that both in China and in other
countries, it is a complicated process to verify whether a law or
regulation has violated the Constitution. A Constitution cannot
solve all the problems in the society and ensure all citizens'
legal rights. A country needs other basic laws, special laws and
sector laws to specify, substantiate and implement the fundamental
law provisions.
The Constitution is China's fundamental law and is the supreme
guideline for state acts, Cai said. "On one hand, we need to apply
the Constitution; on the other hand, we should not frequently
resort to a constitutional review, which is not in the spirit of
the Constitution as the fundamental law."
(China.org.cn by Yuan Fang, March 28, 2006)