Sheng Hong

The title of my speech is “The Problem of the Educating Rights is A Constitutional Problem.” It firstly should be emphasized that “the Educationing Rights” here is not “Educated Rights.” In other words, it means “The Rights to Start up Schools.” The reason for attributing it to a constitutional problem is because the constitutional problem is a root problem, the problem of the origin where powers come from.

There are various explanations for success of China’s thirty-year reform, among which one of the most important experiences is that we conducted constitutional reform. In other words, the most fundamental rule in China has been changed. This is reflected by two well-known sentences, one is “No matter if it is a white cat or a black cat, a cat that can catch rats is a good cat,” and the other is “Mao Zedong is a man, not god.” The first sentence means, it does not matter much which doctrine we stick to as long as our aim is achieved. “Aim” here refers to happiness of the people, development of society and prosperity of the country. The second sentence implies that each individual has his limitation, it’s impossible for him to be omniscient, all-powerful, always correct, and make no mistakes. So there is no a perfect institution designed by men, and there is no such a person who can give “supreme instructions” which shall not be challenged and reformed by anyone. Although these two sentences were not written into the constitution, they are in fact two most basic principles of China’s reform. By sticking to them, we have conducted a very deep reform in thirty years, the most important of which is the market-oriented reform. This has its constitutional meaning, that is, people obtain the freedom to conduct economic activities, which is actually the most fundamental thing. However, where is the freedom or right of economic activities originated from? In fact, it is not a right granted by the government, but one of the natural rights of the people. The government is merely returning to the people what originally belongs to them. This is how we have made the wonder in thirty-year reform.

By contrast, we can see that education is a stubborn field which refuses the principles of reform and opening-up. This is a basic judgment. Our thirty-year- reform practice has proved that returning power to the people and following the road of market economy is correct. Since this road is correct, we can conclude that the basic principle behind it must also be correct and should be promoted in other social fields. In comparison, dramatic changes which are happening in other fields have not yet happened in the field of education, which remains in the stage of planned economy. We can make a good comparison between regulations in the today’s educational field and that in the period of planned economy. Actually, the forms of regulations over education today are almost the same with those of the government’s regulations over the economy in the period of planned economy. The first form is “entrance regulation,” which mainly includes qualification recognition. Schools are not established freely, but have to obtain approval from educational administrative authorities. “Production Plan,” “Price Control,” “Production Target,” “Product Structure,” in the period of planned economy, correspond with “Enrollment Plan,” “Tuition Fee Standard,” “Subject and Major Setup Regulation” in today’s regulation over schools. Another regulation form is “Certificate Issuing.” Though our Certificate of Graduation and Certificate of Academic Degree are issued to us by our universities, the issuing qualification is authorized by educational administrative authorities, and even the format of certificates is also regulated by them. There’s still another problem, that is, “unified product design.” Our textbooks are all examined and approved by the government. In general, the institutional structure of our educational field is still that of planned economy. The fundamental mistake of planned economy lies in its mistakes in epistemology, believing that the authority of planned economy is omniscient and all-powerful, while it is known to all that a man’s rationality has its limitations anyway. In conclusion, our thirty-year reform has proved that planned economy is incorrect, not only in the field of material production, but also in the field of talented person production. [Page]

Our current educational administrative authority is under the illusion that it has the power to decide who should be to enter the educational field. China’s educational field did not undergo along with the whole country the thirty-year reform which is of great constitutional meaning. During this reform, most of the governmental departments directly intervening in economy were cut and dissolved. Under such background, the people were free to set up enterprises and our economy has been booming. Our current educational administrative authority was, however, not cut or dissolved. Moreover, it believes that it has the power to decide who should be to enter the educational field. Now, before starting a school, firstly we have to manage to obtain the approval of the educational administrative authority, who ignores social demand for education and believes that all those not confirming to its regulations shall be deprived of the right to run schools. Several years ago, numerous migrant schools were shut down. For example, Shanghai Jianying School was shut down in 2007, resulting in 1,600 students dropping out of school; also, Mother of Mencius private school’s normal teaching was intervened and prohibited. We can not help asking a question. Where on earth does the educational administrative authority’s power to prohibit others’ entering the educational field come from? This is a question about power origination and also an inquiry of constitutional level.

Why the educational administrative authority has no power to decide who should be to enter the educational field? Firstly, the educating right is one of people’s basic rights which originate from people’s most natural rights, that is, parents pass to the children their experiences and knowledge, as well as knowledge and cultural accumulation handed down from generation to generation. They can teach their children by themselves, or entrust others to do so. This right is born with a person. Besides, we all know that, Confucius has no permit to run schools, yet he started China’s tradition of private schools, without which there probably would be no Chinese civilization at all. Song dynasty is a glorious cultural development era when private academies sprung out all over the country. Among 422 academies in Southern Song Dynasty, 46% to 63% were run by non-governmental sectors. That’s how Confucianism revolution had started. Looking back to China today, Article 47 of our constitution provides that, “Citizens of the People's Republic of China have the freedom to engage in scientific research, literary and artistic creation, and other cultural pursuits.  The state encourages and assists creative endeavors conducive to the interests of the people that are made by citizens engaged in education, science, technology, literature, art, and other cultural work.” Here, the people’s freedom and right to engage in education is also mentioned.
 
The educational administrative authority’s overstepping its boundary of power to decide who should have educating right exerts serious negative influences. Firstly, examination-oriented education throttles personality. Secondly, classics are repelled and quality of textbooks is degraded. Thirdly, the educational administrative authority conducts self-authorization, abuses public powers, and creates rent and seeks rent, resulting in corruption in education. Fourthly, it creates regional discrimination and desecrates social fairness. Fifthly, education for disadvantaged groups is destroyed and non-governmental education is repressed. Most importantly, education quality will be further degraded and the future development of Chinese civilization will be held up by it. [Page]

Finally, I’d like to offer several suggestions on reform over the educating rights. Firstly, relevant laws should be improved and the freedom of running schools should be made clear according to the principle of educational freedom provided by the constitution. Secondly, Ministry of Education should be dissolved while Education Supervision Commission should be established. Thirdly, violation to the constitution should be terminated and entrance regulation of educational field should be cancelled. Fourthly, based on the principle of returning rights to the people and guaranteeing freedom of running schools, regulation should be carried out to regulate and maintain competition order among schools, to conduct transfer payment in primary education so as to ensure jumping-off fairness, to finance theoretical innovation in higher education, and to support education funds and loans. Fifthly, education promotion foundations should be encouraged in order to absorb funds of the private sector. Sixthly, we should encourage more competitive private education rating and supervision organizations and systems to be established. Last but not the least, fair national examination system should be set up and serve as a reference of educational objectives for both public and private schools.

Question 1: we make a judgment that in China, our government considers itself to be all-powerful, even in educational field. You have also mentioned that our government conducts self-authorization. How can we change the situation of government’s self-authorization?

Sheng Hong: I think the answer is constitutional reform. The government’s self-authorization is inertia from planned economy, which convinces both the government and ordinary people of the government’s power of self-authorization. That’s why we need to ask where this power of the government comes from. This is also an inquiry of constitutional level. Firstly, we have to point out that this power of educational administrative authority has no roots and is merely self-authorization. What should firstly be changed are people’s ideas, and the most important thing to do at present is to carry out constitutional reform. We should provide in the constitution what powers governmental departments own, as well as where their powers come from. In fact, it is the people who grant them with these powers through a constitutional procedure. It should also be stated that they have no powers outside their jurisdiction and they are not allowed to exceed their jurisdiction provided by the constitution. Secondly, constitution in courts shall be applied, so that once some governmental departments are found to be exceeding their power authorized by the constitution and conducting self-authorization, we shall be able to sue them.

Question 2: Do you think this is possible?

Sheng Hong: This is still impossible in China now, because China has not set up the mechanism to sue in courts according to the constitution by now. It would be a very important aspect of our future constitutional reform. If we all admit that the constitution is of great importance, yet if it is not implementable and can not be sued, then this constitution is a mere scrap of paper. Hence we have to take more efforts to make it implementable. [Page]