Right or Duty: Reinterpretation of the Nature of the Right to Education in the Compulsory Education Stage

Abstract

With respect to the rights and duties of citizens to receive an education, as provided under the Constitution and the Education Law of China, academic circles have proposed three interpretations: the combined right and duty viewpoint, the right viewpoint, and the duty viewpoint. Through analysis of the course of the emergence, development, and evolution of the Constitution of New China and relevant articles of the Compulsory Education Law, this article argues that the understanding of citizens’ right to education in the compulsory education stage should uphold the combined right and duty viewpoint, regarding the right to education as the right to the starting point and the process of education, and the duty to receive an education as an outcome- and goal-oriented duty.

Keywords:

• compulsory education
• duty of education
• right to education

Notes

2 The 1949 “Common Program of the Chinese People’s Political Consultative Conference” (中国人民政治协商会议共同纲领 Zhongguo renmin zhengzhi xieshang huiyi gongtong gangling) did not explicitly state that citizens had the right to receive an education, but Article 47, Chapter 4, proposed “the planned and gradual implementation of universal education, enhancement of secondary and higher education, with a focus on technical education, strengthening part-time education for workers and on-the-job education for cadres, and provision of revolutionary political education for young intellectuals and the old intelligentsia, so as to meet the wide-ranging needs of revolutionary work and national construction.”

3 The Temple of Heaven Draft Constitution, also known as the “Draft Constitution of the Republic of China” (中华民国宪法草案 Zhonghua minguo xianfa cao’an) was the first official draft constitution formulated during the Republican period, and the first to make provisions with respect to the duty to receive an education. Article 19 stated that “The people of the Republic of China have the duty to receive primary education in accordance with the laws.” The 1923 Cao Kun Constitution, also referred to as the “Constitution of the Republic of China” (中华民国宪法 Zhonghua minguo xianfa), stipulated that “The people of the Republic of China have the duty to receive primary education in accordance with the law.” Receiving an education, paying taxes, and performing military service were explicitly characterized as the three great duties of citizens; this represented the first precise use of the term duty to define the nature of receiving an education.

4 For instance, the term “universal education” appeared in the “Minutes of the National Conference on Education Work” (Quanguo jiaoyu gongzuo huiyi jiyao), which were endorsed by the Central Committee of the Chinese Communist Party in 1971; the “Notice on the 1974 Education Plan (Draft)” (Guanyu 1974 nian jiaoyu shiye jihua [cao’an] de tongzhi), issued by the Education Science Division of the State Council in 1974; the 1980 “Decision on Certain Issues Regarding Universal Primary Education” (关Guanyu puji xiaoxue jiaoyu ruogan wenti de jueding) of the Central Committee of the Chinese Communist Party and the State Council, and other documents.

5 Examples include the “Program of Hebei Province for the Implementation of Universal Nine-Year Compulsory Education” (Hebei sheng puji jiunian zhi yiwu jiaoyu shishi fang’an), Nov. 1, 1985, http://www.law-lib.com/lawhtm/1985/18557.htm (January 10, 2016); as well as the “Program of Sichuan Province for the Implementation of Universal Nine-Year Compulsory Education” (Sichuan sheng puji jiunian zhi yiwu jiaoyu shishi fang’an), January 14, 1986, http://www.law-lib.com/lawhtm/1986/18611.htm (January 10, 2016).

6 See: “Anhui sheng puji chudeng yiwu jiaoyu ruogan guiding” (Certain provisions of Anhui Province on universal primary compulsory education), Anhui jiaoyu (Anhui Education), 1984, No. 12; “Fujian sheng puji chudeng yiwu jiaoyu zanxing tiaoli” (Provisional regulations of Fujian Province on universal primary compulsory education), Fujian jiaoyu (Fujian Education), 1984, No. 11; “Jiangsu sheng puji chudeng yiwu jiaoyu zanxing tiaoli” (Provisional regulations of Jiangsu Province on universal primary compulsory education), Jiangsu jiaoyu (Jiangsu Education), 1984, No. 19; “Ningxia Huizu zizhi qu puji chudeng yiwu jiaoyu zanxing tiaoli” (Provisional regulations of Ningxia Hui Autonomous Region on universal primary compulsory education), Ningxia jiaoyu (Ningxia Education), 1986, No. 4; and “Hualong Huizu zizhi xian puji chudeng yiwu jiaoyu zanxing tiaoli” (Provisional regulations of Hualong Hui Autonomous County on universal primary compulsory education), October 10, 1985, http://www.law-lib.com/lawhtm/1985/18542.htm (Jan. 10, 2016).

7 See: “Anhui sheng puji chudeng yiwu jiaoyu ruogan guiding.”

8 Article 52 of the “Constitution of the People’s Republic of China (1982)” (中华人民共和国宪法 [1982年] Zhonghua renmin gongheguo xianfa [1982]) states: “It is the duty of citizens of the People’s Republic of China to safeguard the unification of the country and the unity of all its nationalities.” Article 53 stipulates: “Citizens of the People’s Republic of China must abide by the constitution and the law, keep state secrets, protect public property, observe labor discipline, abide by public order, and respect social ethics.” Article 54 states: “It is the duty of citizens of the People's Republic of China to safeguard the security, honor and interests of the motherland; they must not commit acts detrimental to the security, honor and interests of the motherland.” Article 55 stipulates: “It is the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression. It is the honorable duty of citizens of the People’s Republic of China to perform military service and join the militia in accordance with the law.” Article 56 declares: “It is the duty of citizens of the People’s Republic of China to pay taxes in accordance with the law.”

9 Article 5 of the 1986 Compulsory Education Law states that “All children who have reached six years of age, regardless of sex, ethnicity, or race, shall be enrolled to receive compulsory education for the specified number of years. Areas which lack the prerequisites may delay enrollment to seven years of age.”

10 Clause 2, Article 2 of the Compulsory Education Law stipulates that: “Compulsory education is education which must be received by all school-aged children and adolescents, as uniformly implemented by the state, and is an undertaking for public welfare which must be guaranteed by the state.” Article 4 states that “All school-aged children and adolescents holding the nationality of the People’s Republic of China, regardless of sex, ethnicity, race, status of family property, religious beliefs, et cetera, shall enjoy an equal right to receive compulsory education in accordance with the law, and shall fulfill the duty to receive compulsory education.”

11 In this passage, the Compulsory Education Law refers to the 1986 version; Article 4 of the 1986 Compulsory Education Law is identical to Article 5 of the new version of the Compulsory Education Law.

12 For the first category of cases, see: Wei Kefan, “Xiang zhengfu zhuanggao shixue ertong jiazhang” (Township governments sue the parents of children deprived of education), Fazhi ribao (Legal Daily), Nov. 1, 2001: 007. For the second category of cases, see: Liu Ge, “Wang Yu su Hou Bo fuyang quan jiufen an” (Wang Yu sues Hou Bo in custody dispute case), in Beijing Shijingshan District Local Gazette Editing Committee, Zhou Maofei (eds.), Beijing Shijingshan nianjian (2007) (Beijing Shijingshan yearbook [2007]), Zhonghua shuju, 2007: 137–138.

13 See Wisconsin v. Yoder, 406 U. S. 205.

Additional information

Notes on contributors

Shen Suping

Shen Suping is a professor in the School of Education, Renmin University of China.

Chen Zijian

Chen Zijian works for Guangzhou Liby Group Enterprise Co., Ltd.