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)