-- Theoretical and Practical Innovations in the Legal Protection of Human Rights Since the 18th CPC National Congress

 

 

Since the 18th National Congress of the Communist Party of China (CPC), the system for the legal protection of human rights under socialism with Chinese characteristics has experienced innovative development. In particular, the Decision on Certain Key Issues on Comprehensively Deepening Reform, which was adopted by the Third Plenum of the 18th CPC Central Committee, has made major reform arrangements related to the system and mechanisms for the legal protection of human rights under socialism with Chinese characteristics. Taking the theoretical and practical innovations since the 18th CPC National Congress in the protection of human rights as its perspective, this article discusses new realms and new highlights in the legal protection of human rights.

 

 

During the 36 days from Aug. 22 to Sept. 26, 2013, there were several open trials that gained wide attention, including the cases of Bo Xilai, Li Tianyi, Yang Dacai, a case in Beijing of throwing a baby, the explosion at the Beijing International Airport, the starvation deaths in Nanjing of two girls, and Gong Aiai. The high frequency of these open trials, their transparency, and the broad attention they received are something that has been rarely seen over the last few years. This situation not only reflected the public’s abhorrence of corruption in society, and fervent attention to the environment, the people’s livelihood, the rule of law and justice, but also reflected the gradual improvement in the legal protection of human rights, as well as fairness and justice in Chinese socialism’s human rights judicial systems and activities. Respecting objective facts and conducting trials in an open, fair and transparent way represent legal thinking and legal practice that should exist in a society under the rule of law. Judicial organs enforce laws fairly and openly, without considering who the lawbreakers are, how much power the lawbreakers have or how large the pressure is from public opinion. This shows the transparency and justice of the judiciary and the maturity and improvement in legal institutions and procedures in China. The phrase, “the state respects and ensures human rights,” was written into the Constitution in 2004, the Decision of the Third Plenum of the 18th CPC Central Committee made clear reform arrangements for comprehensively implementing human rights legal protection. This shows that legal protection for human rights has entered the new stage of legal guarantees for human rights and is not just stuck at the legislative stage. In August 2013, the China Society for Human Rights Studies (CSHRS) compiled China’s Human Rights Development Report (2013), or the “blue book of human rights,” and published Survey of the Chinese Public on Human Rights Concepts, which covered 125 cities nationwide and 15,111 surveyed people. This is the largest survey on human rights concepts ever conducted among Chinese people. The survey shows that the Chinese people have greatly improved their human rights awareness. Their understanding regarding respecting and ensuring human rights has gradually matured; and the human rights cause in China is striving to reach higher goals.

 

China has consistently improved its rule of law, with human rights being more protected. Safeguarding equal participation and development should be guided by the principle of scientific legislation, strict law-enforcement, fair jurisdiction and abiding by the law. Legal protection for human rights more and more reflects the new realm of the legal system of human rights in socialism with Chinese characteristics.

 

First, the new realm of human rights shows the CPC’s ruling principle of serving the people. The Decision of the Third Plenum of the 18th CPC Central Committee clarified that the comprehensive deepening of reform should be aimed at promoting social fairness and justice and improving the people’s livelihood. Serving the people is always the guiding principle of the CPC in ruling the country. China has more than 1.3 billion people, each having different pursuits and interests; in modern society, these pursuits and interests are represented as human rights. Ensuring the rights and interests of each person relies on the legalization of human rights. Without the human rights legal system, there may be inequality in enjoying human rights. Only when human rights enter into the stage of being governed by law can the guiding principle of the CPC for ruling the country be truly realized, thus ensuring that the people can attain dignity and happiness.

 

Second, the new realm shows the fundamental nature of socialist political civilization. Political civilization can be basically divided into democratic politics, legal politics and accountability politics. Some scholars point out that human rights is a component of political civilization. It is a fruit of the development of political civilization and should properly be included in the meaning of political civilization.1  We are marching towards a political system under the rule of law, therefore, a legal system of human rights is an important aspect of this. The country should politically ensure equal rights for all people, regardless whether they are urban or rural residents, students or workers. The Third Plenum of the 18th CPC Central Committee called for perfecting the human rights legal system, which shows that China’s political civilization is entering a new stage.

 

Third, the new realm shows the people-oriented legal concept. Since the 18th CPC National Congress, the Scientific Outlook on Development has become the guiding ideology of the Party and the country. The core of the Scientific Outlook on Development is putting people first, which requires that people-oriented thinking be the guiding principle in establishing the rule of law. This is the “people-oriented legal view.” The “people-oriented legal view” aims to safeguard and protect the legitimate rights of all people. The construction of the rule of law in China should include the legal system of human rights, which would push forward the construction of the rule of law and implement policies and measures concerning the rule of law. Inclusion of human rights in the legal system and realization of a complete legal institution not only makes it easier for organs of state power to govern and administrate according to the law, it also encourages people to share their views on human rights and creates a deeper understanding of human rights, thus accelerating construction of a people-oriented legal system in China.

 

Fourth, a new realm of just trials in socialist China is increasingly manifest. Deepening of judicial reform requires acceleration of a fair, effective and authoritative socialist judicial system in China, which allows the people to experience fairness and justice in every individual case. Everyone stands equal before the law; no organization or individual has special privilege to exceed the constitution or the law. Any violation of the constitution or the law should be looked into. Judicial justice should be the foundation and baseline for social fairness and justice. The judicial system should be reformed to build a mechanism whereby judges and prosecutors can independently exercise their duties and make people earnestly experience fairness and justice in society.

 

 

Since the 18th CPC National Congress, legal protection for human rights has been manifest in two ways: guidance by the spirit of the rule of law and judicial guarantees. The integrated and concerted development of these two points represents the major theoretical and practical innovation in human rights development in socialism with Chinese characteristics since the 18th CPC National Congress.

 

First, guidance by the spirit of the rule of law should be maintained.

 

The law provides standardization and protection for human rights; human rights are the soul and orientation of the law.2  Legal protection for human rights, a conscious legal activity, should be guided by the spirit of the rule of law. Only a country that sticks to legal protection for human rights and guidance by the spirit of the rule of law can achieve harmonious interaction between state power and individual rights. The clause, “the state respects and ensures human rights,” was included in the Constitution in 2004 and symbolizes a new beginning for the socialist human rights cause in China. As the fundamental law, the Constitution includes contents related to economic, political, cultural and social aspects; its core purpose is to protect people’s interests and ensure the realization of civil rights. In real life, however, there are some practices that violate the spirit of the rule of law. Different sectors, such as the legislative, law-enforcement, judicial and executive sectors, have different views on the value of the rule of law. Even in the judiciary, there are divisions. In fact, the main feature of the legal protection for human rights in Chinese socialism is conscientious guidance by the spirit of the rule of law. The Report to the 17th CPC National Congress called for fulfilling the basic strategy of the rule of law. The Report to the 18th CPC National Congress emphasized “comprehensively pushing forward the rule of law.”This shows a shift from the macro level to the micro level. After the realization of the legal system in China, it is necessary to construct a system of rule by law. The shift from the legal system to the system of the rule of law is currently a key feature of the process of developing the rule of law in China. The system of the rule of law will be completed when in all aspects the rule of law is formed. This will help realize the legal goals of comprehensively completing the building of a well-off society. The Report to the 18th CPC National Congress crystallized the shared value concept of freedom, equality, fairness and justice. The Third Plenum of the 18th CPC Central Committee reiterated the principle of the equality of all people before the law. It emphasized that all organizations and all political parties must operate within the boundaries stipulated by the Constitution and the law. It also prohibited any person from having privileges that surpass the Constitution and the law. Meanwhile, the Decision made clear the opposition to three behaviors: fiat in place of law; using power to suppress the law; and bending the law for personal gain. The principle of equality should be used to oppose rule by the individual; to oppose privilege; and to oppose corruption. Corruption derives from privilege. The focus of fighting corruption should first be put on fighting privilege. This reiteration has not only practical but also historic meaning. Since the 18th CPC National Congress, there has also been an emphasis on propagating the spirit of the socialist rule of law. The status of the spirit of the rule of law is ahead of the concept of the socialist rule of law. This is a new change. Regarding the spirit of the rule of law, the legal world gives it six meanings: the supremacy of the Constitution and the law; pursuit of fairness and justice; respect and protection of human rights; constraint of public power; independence of the judiciary; and freedom, equality and harmony.

 

In terms of the shared value of the rule of law, the spirit and thinking of the rule of law, and legal protection for human rights should be guided by the following principles:

 

First, the rights to existence and development are still the most fundamental human rights that should be protected. China, with more than 1.3 billion people, can only solve this problem by vigorously developing its national economy. At present, there are environmental problems in many cities, such as air pollution and smog, which have worried people for quite a long time. Therefore, human rights legislation should first ensure the survival and development of human beings.

 

Second, the right to happiness is an important aspect of basic human rights. The right to survival is followed by the right to happiness, not only materially but also spiritually. With continuous economic growth and a rise in living standards, spiritual demands are more and more significant. Therefore, legislation should not only pay attention to material aspects and guaranteeing economic rights, but should also pay attention to social and environmental impacts on people. People are not isolated units but are members of communities. Therefore, a suitable living environment, the possibility of development and spiritual enjoyment should all be considered in human rights laws.

 

Third, leisure is another fundamental right. The right to leisure, put simply, is relief from work and a right to enjoy physical and spiritual leisure. Leisure is also using one’s favored method to pursue spiritual enjoyment in order to raise the quality of one’s life and the amount of one’s freedom and happiness. In this regard, enjoying leisure is exercising the right to happiness. Therefore, human rights legislation should fully consider the right to leisure. Vacations should be provided to workers and work schedules should be arranged properly.

 

Second, legal protection for human rights should be conscientiously adhered to.

 

The Decision of the Third Plenum of the 18th CPC Central Committee called for improving the legal protection system for human rights, making improvement in human rights legal protection an important strategic task in pushing forward construction of the rule of law and deepening judicial restructuring. Legal protection for human rights means legalizing human rights and making them part of the nation’s legal protection mechanism. Through administrative organs conscientiously carrying out their duties and strictly enforcing the law, every concrete human right within the law will be transformed into practice, which will benefit all citizens. Legal protection for human rights is based on the law. In order to earnestly respect and ensure human rights, the 18th CPC National Congress called for ensuring the independence of judges and prosecutors. Judicial independence is always the first and foremost principle stipulated by the Constitution. Without judicial independence, there is neither a modern judicial system, nor legal protection. Independent performance of duty means judicial independence from the executive power, independence between courts, independence of judges’ individuality, and independent judgment and independent responsibility of judges. The Third Plenum of the 18th CPC Central Committee clarified the principle of ensuring human rights, the idea of improving human rights protection and the measures for bettering human rights protection.

 

First, the judicial procedure of confiscation, seizure, freezing and handling funds or assets involved in cases should be further standardized. Legalization, standardization and openness of procedures can prevent illegal activities, under the pretext of legal procedure, from occurring in order to achieve personal gain. Laws and regulations should be strictly observed when such funds and assets are handled. Judicial procedures should be specified. Such funds and assets should be well maintained.

 

Second, wrong verdicts should be prevented or corrected and responsibility for such errors should be pursued. Wrong verdicts refer to unjust, false and erroneous cases, such as criminal cases in which innocent people are unjustly charged. Xi Jinping, general secretary of the CPC Central Committee, called for preventing unjust, false and erroneous cases, in order to safeguard people’s legitimate rights and judicial authority. The prevention of erroneous cases should be first. Torture or physical abuse in interrogation must be banned. Evidence should be collected through legal means. No innocent person should be unjustly punished and no guilty person should be let free. A mechanism should be constructed to identify erroneous cases. The suspect’s right of appeal should be ensured. Appeal letters and other documents should be treated carefully, the role of lawyers should be ensured, and the rights and interests of each individual should be safeguarded. The mechanism of correction for wrong verdicts should be established to curb the abuse of power by some law enforcers.

 

Third, the number of crimes eligible for the death sentence should be reduced. The death sentence deprives the criminal of life, making it the most severe punishment for a crime. Although some countries in the world have abolished the death penalty, which is regarded by them as the most inhumane punishment, indiscriminately imitating this may not be right for China. China is at the primary stage of socialism. There are sometimes extremely cruel and severe crimes. The basic policy of China’s judicial system is to maintain the death penalty while restricting application of the death sentence.

 

Fourth, the system of reeducation through labor has been abolished and community-based correction measures should be adopted to punish criminal activities and correct wrong doers.3  Reeducation through labor was an administrative measure to carry out mandatory education. Community-based correction is targeted at criminals who are under surveillance, under a suspended sentence, serving sentences outside prison or on probation. Within a statutory time limit, state organs, social groups, nongovernmental organizations and volunteers work to rectify the criminal psychology and behavior of the targeted criminals.4 Reeducation through labor restricted the right to freedom. Community-based correction is a compensatory measure after the abolition of reeducation through labor. In the early stages since the establishment of the new system, various problems will arise that need to be addressed in practice. This has been a new breakthrough in China’s legal protection of human rights. It shows the soul of the people-oriented concept of law in socialism with Chinese characteristics.

 

Fifth, the state judicial aid and legal assistance system should be improved. Judicial aid refers to lump-sum compensation for victims. Legal assistance refers to the free legal service offered by the government to economically strapped people involved in legal cases. Judicial aid should be aimed at specific targets and its focus should be clarified. Judicial measures and procedures should be improved. Judicial protection should be strengthened. In improving legal assistance, the government needs to consider the coverage of such assistance, financial costs, coordination between different government branches and legislative problems related to legal assistance.

 

Sixth, the lawyer system should be improved. Lawyers are an indispensable force in pushing forward the construction of the rule of law. They use their wide knowledge and eloquent skills to help safeguard the legitimate rights of defendants. Through their efforts, justice is to some extent enhanced. They often represent fairness and justice in society. Improvement of the lawyer system should focus on management of such professionals and standardization of their activities, as well as provide them legal protection. The mechanisms of defense and litigation should be improved. Lawyers should be appraised according to professional standards. The professional practices of lawyers should be standardized and their moral standards should be strengthened.

 

(Xian Kailin is professor at Northeast Finance and Economics University and director of its Human Rights Research Center. Liu Zhuangqiong is a master’s degree candidate at the university.)

 

1.Zou Pingxue, “Analysis of Political Civilization from a Human Rights Perspective,” Jiangxi Journal of Social Sciences, June 2004.

 

2.2. Jiang Wei, “Legal Protection System for Human Rights,” Guangming Daily, November 19, 2013, p. 2.

 

3.3. Ibid.

 

4.Wu Aiying, “Vigorously Pushing Forward Community-based Re-correction”.