Challenges of the Chinese Legal System

Challenges of the Chinese Legal System What is the Rule of Law? - Publicity - Non-retroactivity - Understandability - Consistency - Possibility for practical implementation - Stability - Good enforcement of the norms Uncertain Hierarchy of Norms - (PRC Human Rights White Paper 1991) • '[t]he Chinese Government has always submitted reports on the implementation of the related conventions, and seriously and earnestly performed the obligations it has undertaken. (...) China believes that as history develops, the concept and connotation of human rights also develop constantly. The Declaration on the Right to Development provides that human rights refer to both individual rights and collective rights. (...) China is in favor of strengthening international cooperation in the realm of human rights on the basis of mutual understanding and seeking a common ground while reserving differences. However, no country in its effort to realize and protect human rights can take a route that is divorced from its history and its economic, political and cultural realities. A human rights system must be ratified and protected by each sovereign state through its domestic legislation.' The Lack of Constitutionalism - The 4th Constitution of the PRC after 1954, 1975, 1978 - Adopted by the 5th NPC on December 4 1982 (last amended in 2018): a strong political willingness - Top priority: economic development and social stability, decreasing influence of class struggle - Art 1: China is 'a socialist State under the people's democratic dictatorship' - The Constitution as being 'non litigable' and a 'sleeping beauty' (Ji Weidong) - Supreme Court's judicial interpretation of the Qi Yuling case The Hukou Editorial - 'The Constitution stipulates that the citizens of the People's Republic of China are all equal before the law, that the nation respects and protects human rights, and that the citizens' personal freedoms will not be infringed upon. Freedom of movement is an inseparable component of human rights and personal freedom; it is a basic right that the Constitution bestowed the people. However, the current household registration policy has created unequal statuses among urban residents and between urban residents and peasants, constraining the Chinese citizens' freedom of movement. All laws and administrative and local regulations must not contradict the Constitution - this is the legal basis for accelerating the current reforms of the household registration system.' Judicial Independence - Education, public opinion and corruption - Adjudication Committee for 'Deliberating and deciding on the application of laws in major, difficult and complicated cases' (Art. 36-39 OLPC): • Barrier against corruption and collective wisdom • Vs. direct interference in the Court's final decision • Opinions of the Supreme People's Court on Improving the Working Mechanism of the Adjudication Committee of the People's Court (2019) - (Liang Baojian in Yuwen Li, 2014) • 'A specific responsible judge reports a case orally, and even though the reported contents may not reflect the true facts of a case, one can hardly discover or correct them; some responsible judges take a long time to report all the details without a clear order, and members of the adjudication committee ask questions repeatedly, which results in protracted meetings; the oral report, and the fact that members of the adjudication committee comment immediately without time to study the case and the relevant laws, means that the quality of the decision cannot be guaranteed. Sometimes a decision of the adjudication committee is changed later by the same committee' - Education, public opinion and corruption - Adjudication Committee for 'Deliberating and deciding on the application of laws in major, difficult and complicated cases' (Art. 36-39 OLPC): • Barrier against corruption and collective wisdom • Vs. direct interference in the Court's final decision • Opinions of the Supreme People's Court on Improving the Working Mechanism of the Adjudication Committee of the People's Court (2019) The Party-State at a Turning Point - 'Socialism with Chinese characteristics has entered a new era' (Xi Jinping 2017) - Internally: Numerous challenges that pertain to the relationship between economics and politics; sustainability of the rapid economic growth trajectory; high level of income inequality and economic disparities; increased concentration of power. - Externally: Need to make sense of the enduring crisis of the post-World War II Liberal International Order - • Crisis of legitimacy (i.e. institutional and normative legitimacy) • Crisis of effectiveness 'China's authoritarian revival' and the 'end of an era' (Minzner 2018): • 2018 Amendment to the Constitution: Concentration of power under Xi Jinping and 're-Participation' of Chinese politics • New laws to protect China's 'national interests' (2015 National Security Law; 2016 cybersecurity law; 2016 Law of the People's Republic of China on Administration of Activities of Overseas NGOs) - • Vocal opposition to the promotion of 'universal values' (Document 9, 2013) • 2017 'Xinjiang Autonomous Region Regulation on De- esterification' • 2020 Hong Kong National Security Law (quoted by Eva Pils 2017) • 'In China, we say that for a person meditating in a cave, a day passes as though it were a thousand years; it is like paradise. And where did I experience paradise? In there in the detention center, being tortured. A day was like a thousand years. That's how it felt.' China and the Future of the Liberal International Order - (2014 Plenum of the CCP) • The CCP Central Committee committed to [s]strengthen foreign-related legal work' and '[v]vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country's discourse power and influence in international legal affairs, and use legal methods to safeguard our country's sovereignty, security and development interests'. - (Chan 2017) • 'China has now concluded over 23,000 bilateral treaties with other countries, signed more than 400 multilateral agreements, and joined the majority of the major inter-governmental organizations of the world as well as many international non-governmental organizations’ - UN Human Rights Council • 'Chinese authorities are trying to rewrite norms and manipulate existing procedures not only to minimize scrutiny of the Chinese government's conduct, but also to achieve the same for all governments' (Richardson 2020) E.g. Opposing letters on Xinjiang and Hong Kong • Declining support for China's Membership in the UN Human Rights Council: 2016 election (180 votes in favors) and 2020 election (139 votes in favors) • Declining support for draft resolutions proposed by China on 'mutually beneficial cooperation' in the field of human rights