Yao Lifa: A retrospective on seeking judicial remedies for the right to directly elect deputies to the People’s Congress

Deputies’ bills and joint proposals

Zhou Hongyu (a deputy to the National People’s Congress) explicitly listed “improving the election litigation system” as one of his proposed revisions in a 2008 bill, and stated bluntly that “the absence of an election litigation system is a major flaw in China’s current electoral system.” During the 2008 Two Sessions, several deputies’ bills to revise the Election Law focused on “improving the election litigation system,” arguing that the existing provisions “can no longer meet the needs of social development.” These were proposals that formally entered the legislative agenda at the level of deputies.

Systematic academic draft proposals for revising the law and discussions

In June 2009, Professor Han Dayuan of Renmin University of China led the completion of the Election Law (Expert Draft Amendments), and a seminar was convened specifically to discuss it, with “resolution of election disputes and election remedies” explicitly on the agenda. This was an institutional design presented as a complete draft proposal for amending the law, not a collection of scattered articles. Before and after deliberation on the 2010 Draft Amendment to the Election Law, the Constitutional Law Research Society of the China Law Society organized a discussion with more than 20 constitutional and administrative law scholars, collecting proposed revisions. Academic participation was organized and produced written results.

Scholars’ sustained calls based on specific cases

Focusing on the “Wang Chunli case,” Jiao Hongchang (a professor at China University of Political Science and Law) published a dedicated article in the sixth issue of Law Science in 2005, systematically identifying seven flaws in remedies for the right to vote, including “a narrow scope of remedies, misdirected procedures, and a lack of adjudicative bodies.” He argued that “people’s courts should establish election tribunals to hear election dispute cases”; when conditions were ripe, election litigation could even be incorporated into constitutional litigation. This was the most representative proposal made by an individual scholar, and directly addressed real disputes in county and township People’s Congress elections, such as “not being notified to participate in the election,” which courts refused to accept.

Calls to amend the law from practitioners based on judicial practice

An article published in Rule of Law and Society in 2018 noted that in the implementation of the Election Law, disputes over “determining the qualifications of candidates for People’s Congress deputy, publishing election information, and failing to register voters who are eligible to vote,” among others, were followed by courts “refusing to accept the cases or dismissing the lawsuits” after the parties filed suit. It explicitly called for “improving the judicial remedy procedures under the Election Law” and even suggested bringing such disputes under administrative litigation. An article in Industry and Technology Forum in 2018 likewise called for “bringing some election disputes into the administrative litigation dispute resolution mechanism.” These calls, based on observations of judicial practice, point to the very problem repeatedly identified earlier: election disputes beyond voter eligibility have no avenue to enter the courts at all.

Appendix

Case 1: Procedural rights violated — the Wang Chunli case

During the 1998 election for a new term of the People’s Congress in Xicheng District, Beijing, the voter eligibility of Wang Chunli and 16 others had been confirmed on the voter rolls. But after their employment relationships were terminated, their former employer neither notified them to vote nor issued them voter cards, so they were unable to exercise their right to vote. After they sued, the Xicheng District Court ruled that the case did not fall within the scope of civil litigation; the Beijing No. 1 Intermediate People’s Court upheld the ruling.

This case became the most frequently cited starting point in academic discussions of judicial remedies for the right to vote. Drawing on the case, Jiao Hongchang (China University of Political Science and Law) published a dedicated article, systematically identifying seven flaws in remedies for the right to vote, including “a narrow scope of remedies, misdirected procedures, and a lack of adjudicative bodies,” and explicitly arguing that “people’s courts should establish election tribunals to hear election dispute cases,” and that, when conditions were ripe, election litigation should be incorporated into constitutional litigation. Commentators at the time also summarized the case as exposing the problem that “the disconnect between substantive law and procedural law leaves citizens with no way to bring a complaint.”

Case 2: Dispute over candidate qualifications — the Pan Zhonglin case

Pan Zhonglin, a political science teacher, was jointly recommended as a candidate for People’s Congress deputy by more than 400 voters. But because he did not meet the candidate requirement of being “a leading cadre at or above deputy department level or a non-Party member,” the election committee refused to include him on the list of candidates. Pan Zhonglin chose to sue the Shihezi City Election Committee.

This case concerns candidate qualifications, a dispute for which there is no entry point under the existing types of litigation. An article published in Rule of Law and Society in 2018 explicitly noted that in the implementation of the Election Law, disputes over “determining the qualifications of candidates for People’s Congress deputy, publishing election information, and failing to register voters who are eligible to vote,” among others, were followed by courts “refusing to accept the cases or dismissing the lawsuits” after the parties filed suit, and called for “improving the judicial remedy procedures under the Election Law.”

Case 3: The right to be nominated and oversight of the electoral process — the Liang Guangzhen incident and the phenomenon of “independent candidates”

Although the incident of “Liang Guangzhen serving as a People’s Congress deputy in two places” was not strictly a litigation case, scholars have treated it as a classic example alongside the Wang Chunli case to show that there is likewise no channel for judicial intervention in oversight of the nomination of People’s Congress deputy candidates or in disputes over the electoral process. After comparing these two incidents, one study noted that the 2010 revision of the Election Law “made no improvements in areas such as how to provide remedies for citizens’ political rights,” and argued that this should be a direction for future revisions.

Mo Jihong (Institute of Law, Chinese Academy of Social Sciences), meanwhile, focused on the phenomenon of “candidates jointly recommended by voters,” arguing that voters’ “right to be nominated” needs to be effectively protected institutionally, and that judicial remedies are an indispensable part of that protection.

Case 4: Procedural inaction by election committees

In addition to the “not being notified to vote” situation in the Wang Chunli case, in practice election committees have also failed to process complaints, leaving the parties unable to obtain the “prior decision” needed to file suit. Ye Bifeng (Shanghai Jiao Tong University) reviewed an early case: a party was subject to administrative punishment after questioning the omission of ballot distribution in a township People’s Congress election, then filed an administrative lawsuit, but courts almost never conducted substantive review of administrative litigation cases involving political rights. This confirms the same structure from another angle: disputes arising during the election organization process lack an entry point for neutral judicial adjudication.

What do these cases and calls collectively point to?

The Wang Chunli case concerns procedural rights; the Pan Zhonglin case concerns candidate qualifications; the Liang Guangzhen incident and the phenomenon of “independent candidates” concern the right to be nominated and oversight of the process; and election committee inaction concerns a remedy chain broken at the outset. The proposals of scholars such as Jiao Hongchang and Mo Jihong, along with deputies’ bills and articles by practitioners, repeatedly point to the same direction for legal reform: expand the scope of election litigation beyond the single issue of “voter eligibility” to cover multiple stages of the electoral process, and establish a specialized adjudicative mechanism. However, after the 2010 revision of the Election Law, litigation over voter eligibility remains the only judicial entry point in county and township People’s Congress elections; all other disputes remain outside the courts.

Yao Lifa (a former Qianjiang People’s Congress deputy elected after receiving votes in the “write-in another person” column on the ballot. Contact: mobile phone + WeChat number 13339728964)