Huang Jinrong

(The author is an assistant research fellow with the Institute of Law at the Chinese Academy of Social Sciences. In this second of a two-part series on China's human rights situation, Huang discusses the protection of human rights in the context of the Chinese legal system and reform.)

Compared with the blatant debate of China's human rights in the political arena, the construction of a mechanism of human rights protection in the legal system draws less controversy but is more important. Whatever the political rhetoric says about human rights, the actual situation of human rights protection in the legal system is a more reliable benchmark of measuring the country's humanrights commitment.

As we have discussed, human rights and citizen's rights are two interrelated but different concepts in China. The rejection of the conception of human rights in communist China did not preclude China from entrenching basic citizen's rights in its constitutions. [Ed. Note: see "China's Tortuous Process of Accepting Human Rights Conception" in the September 2004 issue of Human Rights Solidarity] The lack of the rule of law and the particularity implied in the radical communism had, in fact, invalidated any of those constitutional rights. The situation, however, has changed tremendously since 1978 when the reform and opening policy was adopted. The necessity of protection of citizen's rights has been upheld after the end of the long turmoil of the 1966-1976 Cultural Revolution. Such slogans as "socialist democracy should be established and socialist legal system should be perfected" were well publicised in the early 1980s, although it was just a kind of democracy and legal system in the Chinese Communist Party's sense. Under such a political atmosphere, China began its large-scale legislation and legal reform.

The Chinese legal construction process can be divided into two stages. The first stage (1978-1995) primarily focused on the large-scale legislation that intended to fill the legal vacuum. A slogan saying "there should be laws to follow and laws must be followed" at that time reflected the country's desire for a legal order. The most prominent laws enacted during this period were the new constitution of 1982, which formulated basic citizen's rights and duties; the Criminal Procedural Law (1979) that provided some basic protections of defendant's rights; and the Administrative Litigating Law (1989) that allowed the people to bring lawsuits before courts against administrative organs if they found their legal rights were violated. These pieces of legislation provided China with a basic legal framework, under which the economic, property and personal rights were preliminarily guaranteed. Nevertheless, human rights at this stage were not a major concern, and international human rights standards were also barely considered in the legislation. The second stage (1996-present) focused on legal reform. Values of human rights and international human rights standards were increasingly become a source of guide for legal reform. This process began with the revisions of two important laws. In 1996, the Criminal Procedural Law was revised and established the principle of presumption of innocence. The rights of defendants were further guaranteed by providing them with the right to legal counsel during the time of questioning by public security organs. Some practices of excessive detention were abolished. In 1997, the revised Criminal Law established the principle of nulla poena sine lege scripta (no punishment without a law), abolishing the long-standing practice of the analogical application of a crime-an act on which there were no corresponding governing provisions in criminal law but was thought to be severely detrimental to society, was punishable by invoking the most similar provisions in the criminal law.

In this period, the most significant event related to the protection of human rights was the acceptance of the principle of the rule of law by the Chinese Communist Party. In 1996, the party pledged to "build a socialist state under the rule of law". Such formulation was incorporated into the constitution as a constitutional amendment in 1999. Most Chinese legal scholars considered that a great progress. The Chinese Communist Party had long attempted to establish a legal system in the country after the end of the Cultural Revolution. But for a long time, laws had been taken by the party as a means to govern people rather than checking state power. Some legal scholars described the situation as "a legal system without the rule of law". Thus the entrenchment of the principle of the rule of law was regarded as a commitment by the party as well as by the state to end the traditional deeprooted thought of rule by man. The powers of all officials, especially of the party officials, are thus expected to be checked by laws. It is still quite doubtful whether the party is really willing to subject its enormous powers to legal control. Nevertheless, the principle, at least, has become a legitimate tool that people can use to protect their human rights. The notion of the rule of law, along with the conception of human rights, has gradually become widely known and upheld by ordinary Chinese. It has shown its influence in pushing the legal reform forward, even though the implementation of the mechanism is far from perfect.

The Sun Zhigang Incident

Last year, the incident of Sun Zhigang demonstrated the power of ordinary people in pushing forward the protection of human rights and the rule of law. Sun, a 27-year-old graphic designer in Guangdong province, was killed on March 20 after being detained for three days for not carrying a residency permit. Although his employer provided the authorities with the relevant documents within hours of his arrest, he remained in detention. He was beaten to death by his roommates upon the instigation of an official in the detention centre. Sun's father appealed to almost all the governmental organs and tried in vain to demand an investigation. The incident was eventually exposed by the media (initially on the Internet) and stirred widespread public outrage throughout the country. Some legal experts wrote to the Standing Committee of the National People's Congress, the country's top legislature, appealing for a review of the constitutionality of relevant administrative regulations. As a result, the ringleader of the crime was sentenced to death and a dozen of local officials were removed from their posts. The State Council abolished the "Measures for Internment and Deportation of Urban Vagrants and Beggars", which was promulgated in 1982 and abused by local authorities. 

The regulation and local practices as shown in Sun's case are obviously in violation of human rights. The law abolished provided that urban vagrants and beggars should be detained and deported to their original registered place (usually birthplace). But it had become a justification for a wide range of arbitrary practices in reality. In some places, anyone who could not show his legal identity document, normal residence permit or source of income could be detained by the police and forced to go back to his original registered place. Frequently his family was also asked to pay back a sum of money for his accommodation and travel fares. Many detention centres often made use of such opportunities to benefit from this "business". Due to its arbitrary nature, those most disadvantaged groups, such as vagrants, beggars and migrant workers who were looking for jobs in cities, usually became the victims of the system. There was usually no legal remedy. 

Re-education through Labour 

The "Measures for Internment and Deportation of Urban Vagrants and Beggars" is just one of many laws that are incompatible with the human rights protection in China. A number of old laws or legal practices are outdated from the perspective of human rights and the rule of law.

The "re-education through labour" system is a case in point. This system allows police to send people to labour camps for up to three years for a variety of vaguely defined offences without having to present the case before a prosecutor or a judge. Police discretion has made "re-education through labour" a key weapon in cracking down on all kinds of protesters. Chinese legal scholars have long struggled to reform or even abolish the system. But the authorities are hesitant to make any changes because the system has been a convenient tool for the government to "maintain stability". Yet apparently this system is incompatible with the Chinese constitution, the Criminal Law and the Criminal Procedural Law, not to mention the international human rights standards. The main obstacle to reform is the lack of political willingness of the authorities. Nevertheless, the government and the national legislature are now considering the possibility of reforming the "re-education through labour" system. Given its unpopular nature, an overhaul of the system is just a matter of time.

Hukou System, Other Violations

Apart from these two obsolete laws, there are many more systems obviously in violation of international human rights standards or the Chinese constitution. The hukou system is one of them. According to the hukou system, everyone is tightly restricted to a certain area that makes it very hard for a peasant to be an urban resident, a resident in one place to move to another place. The system not only reinforces the gap between rural and urban areas, but also is clearly in violation of the freedom of movement. Fortunately, the government has begun to reform this system by gradually loosing the restrictions.

But the government so far has no intention to reform another restrictive law, namely the Law Regarding the Assembly, Procession and Demonstration. Although the law claims to protect freedoms of assembly, procession and demonstration, it is regarded by some legal experts as a law forbidding such freedoms since the law pays too much attention to the restriction of the exercise of these freedoms. It provides no judicial remedy, which makes the decision of permission entirely subject to administrative discretion. Whenever the government thinks it is unsuitable to give approval, no permission would be issued. It is apparently in violation of the constitution that stipulates "every citizen of the People's Republic of China enjoys the freedom of speech, publication, assembly, association, procession and demonstration". 

There are concrete laws invalidating the constitutional rights. Such cases are not rare in China. 

No Judicial Review 

But how come such a law that is obviously contradictory to the constitution exists without legal remedies? This is where the crucial defects of the Chinese legal system are. According to the constitution, the National People's Congress and its Standing Committee are in charge of the supervision of the implementation of the constitution. A law, such as the Law Regarding the Assembly, Procession and Demonstration enacted by the National People's Congress, cannot be revised or abolished unless the National People's Congress itself wants to. Yet, it is obviously impossible for the National People's Congress to do so.

Theoretically, both National People's Congress and its Standing Committee can repeal any law or regulation enacted by administrative organs or local people's congresses. But in reality, they almost never exercise such power. There are a lot of reasons behind this. Politically, the National People's Congress is too weak to exercise such a power. The national legislature is often labelled as a "rubble stamp", only a convenient tool for the government or the party to legitimise its actions. But from the perspective of law, it is due to the lack of an independent judicial review system.

Under the circumstance that the National People's Congress and its Standing Committee are reluctant or actually unable to function as a supervisory organ of the constitution, the judicial review is the only hope for the protection of constitutional rights. But the power of judicial review is too limited in China. According to the Administrative Litigating Law, courts can only review the legality of the administrative decisions, but have no mandate to review so-called "abstract administrative acts" (i.e. the administrative regulations enacted by governments at all levels), even if they find those regulations are in violation of the constitution or laws. It is unlikely that the courts would be empowered to review unconstitutional laws enacted by people's congresses at all levels. In addition, there has been a widely held opinion among the legal profession, especially judges, that the constitution alone cannot be applied to individual cases. Although many legal scholars argue that the constitution should be applicable and there is no provision forbidding the application, the courts are still extremely reluctant to do so. Nevertheless, the judges are not the ones to be blamed for this situation. Since they are not empowered to review laws and regulations, it is very difficult for them to apply the constitution. The constitutional rights can thus hardly be implemented in reality.

The inability of the courts to protect human rights is, for a large part, due to the restriction of laws themselves. Apparently, the authorities are more willing to guarantee personal and property rights than civil and political rights. For example, in the Administrative Litigating Law, the admissibility of a case by court is strictly limited to those that are related to violations of personal and property rights. Cases related to other rights such as civil and political rights are admissible only on the condition that justiciability of those rights is explicitly stipulated by other laws or regulations. If there is no law stipulating the rights or explicitly allowing citizens to bring a case before the court, there is no access to justice at all. For instance, the Law Regarding the Assembly, Procession and Demonstration does not explicitly provides that citizens can appeal to court for a review of the decision made by the administrative organs in refusing an application for assembly, procession or demonstration. If a citizen makes an attempt to appeal, the court will not admit the case. In this way, most of the citizens' constitutional rights are precluded from the application by the courts. Such an inoperative nature of the constitution is often described by scholars as "a constitution without constitutionalism". Although the constitution claims itself as "the fundamental law of the state with supreme legal effect", it is, to a large extent, still a remote ideal yet to be realised. For the Chinese people, the first and foremost task at present is to make the constitution operative and the constitutional rights realisable, even though there is still a gap between the constitution and the international human rights standards. 

Dilemma in Reform 

Clearly, interms of the implementation of the constitutional rights in China it is not just a legal issue. It is a political issue beyond the realm of legal system. How far the legal reform can go, to a large extent, depends on the political willingness of the authorities. It would be unfair to say that the Chinese authorities want to do nothing in implementing the constitution or carrying out legal reform. The rhetoric of party leaders is always inspiring. At the Chinese Communist Party's 16th plenary meeting in 2002, the then party chief Jiang Zemin claimed that "we must see to it that all people are equal before the law. We should tighten supervision over law enforcement, promote the exercise of administrative functions according to law, safeguard judicial justice and raise the level of law enforcement so that laws are strictly implemented". Earlier this year, an amendment providing that "the state shall respect and safeguard human rights" was added in the constitution under a proposal by the Chinese Communist Party's central committee. 

But in terms of concrete measures, the authorities always show great caution. To the party leaders, it is quite a dilemma between the need to carry out the legal reform and protect human rights, and the need to grip its monopolistic influence on all legal organs. The ongoing judicial reform is just a reflection of such a situation. The judicial reform has been carried out for years in China. The rampant judicial corruption and unfairness, the local protectionism and the inefficiency of the judicature have greatly eroded the public confidence in law and judicial justice. The authorities show some enthusiasm in the judicial reform. A number of measures, including the introduction of a uniform judicial examination, the separation of the enforcement departments from the trial departments in court, and the improvement of the method of trial by introducing some elements of adversarial system, have been taken in the judicial reform. But the fear of losing control makes the authorities hard to push the judicial reform forward by giving judicial independence in full sense. By the same token, the authorities are also very inactive in considering giving the courts greater power of judicial review. 

The dilemma in the judicial reform is typical in the Chinese context. On the one hand, the rule of law and human rights protection has been recognised by the public as well as the authorities as lofty ideals; on the other hand, the actual implementation of protection is full of ups and downs, progress and stagnation. It is a big challenge facing both the Chinese people and the authorities. No one can tell how the dilemma will be resolved eventually. Only one thing is for sure, human rights and the rule of law in full sense must be implemented in the near future.