Modern Chinese Legal Reform: New Perspectives

9. Legal Institution Building for the Rule of Law and Human Rights

9 Legal Institution Building for the Rule of Law and Human Rights Yuchao Zhu The human rights issue in China continues to be contentious. The issue can be examined in a context of, among other things, the reconstruction of China’s legal system since the 1980s, and although the overall direction of legal reform has tended toward “the rule of law,”1 if, or to what extent, China has built itself a “rule of law” society is still very debatable.2 The Chinese government acknowledges serious problems of youfa buyi (having laws but not practicing them accordingly) and zhifa buyan (inadequate law enforcement).3 Critics either claim that they do not trust China’s legal system at all4 or accuse the Chinese government of “abusing the rights according to the law.”5 But still, examination of its legal reform and law regimes has significant implications for the discussion of China’s human rights.6 This is largely because documentary law is most “explicit, codified, relatively stable, and resistant to the whim of individual leaders,”7 and it can fundamentally decide the legal parameters for the relationship between citizens and the state, as well as between rights and power. All the relevant institutional or noninstitutional actors have to live within these legal parameters. This chapter first describes and identifies the progress and deficiencies of China’s legal reform relating to human rights protection, particularly through a brief examination of China’s constitution, its criminal law, and its administrative law. Second, it appraises legal reform and its attribution to the rule of law and human rights in China. Third, it discusses the chang- 216   Yuchao Zhu ing societal environment and political conditions that may influence or even determine legal institution building as an entrenched legal order for China’s human rights. Legal Reform in Different Law Regimes Since the early 1980s China has conducted fundamental legal reform through which the overall law regime has been reconstructed from the constitution as well as from criminal, civil, economic, and administrative law.8 As the essential law for a state, the constitution was the first law to be rewritten. Before 1982, the People’s Republic of China (PRC) had three constitutions. The 1954 constitution followed the model of the Soviet Union’s constitution and was comprehensive, but it contained some serious defects. The 1975 constitution and the 1978 constitution are highly problematic, and their constitutional value is minimal, mainly because of the negative influence of the Cultural Revolution. The current 1982 constitution , with its central theme of restoring the spirit of the 1954 constitution while stipulating a wide range of rights and freedoms, is designed mainly to serve China’s most imperative goal: modernization.9 There have been four important constitutional amendments since 1982. Overall, the 1988, 1993, 1999, and 2004 amendments confirm as constitutional the ideas and results of China’s market-oriented economic reforms. These amendments have redefined the individual economic rights that can strengthen the legal stand for rights protection in general. The 1999 amendment added a significant article (5) regarding yifazhiguo (ruling the country in accordance with the law). The 2004 amendment is particularly committed to the principle of protection of public and private property, the rule of law, human rights, and constitutionalism.10 On the other hand, there is no provision to guarantee political and civil rights, and there exist very few restrictions on the state’s arbitrary power. No real political structural change has been made as far as the constitution is concerned.11 Thus, the current constitution, including its amendments, has some intrinsic deficiencies. For example, the scale of human rights protection is still limited. Although the constitution makes a general commitment to the protection of political, economic, cultural, and civil rights,12 if we compare its provisions with what has been included in the international human rights regime, especially in the three international human Legal Institution Building for the Rule of Law and Human Rights  217 rights treaties that China has already signed,13 we find that a number of fundamental rights are still missing. These include workers’ right to strike and to organize independent unions, and freedom of movement, thought, belief, opinion, and expression. In fact, some of these rights and freedoms appeared in former constitutions.14 For instance, freedom of movement was written into the 1954 constitution, but with the establishment of the hukou system (residential registration system) in 1958, this right was...