Constitution plays bigger role in protecting human rights
The Constitution’s profile has been raised since 2012, when the 18th National Congress of the Communist Party of China highlighted its fundamental role in all aspects of society, and it has been playing a bigger role in protecting human rights, legal professionals said.
They lauded President Xi Jinping’s remarks last month about adhering to Constitution-based governance at a central conference on work related to law-based governance, saying that the fundamental law is all around us and influences every aspect of our lives.
“Legislators and judges previously focused more on specific laws than the Constitution when drafting a law or making a ruling, but now they prefer to talk about the fundamental law, have an enhanced awareness and take it as the guide in their work,” said Zhao Li, a criminal lawyer at Jingsh Law Firm in Beijing, ahead of the country’s seventh Constitution Day, which falls on Friday.
At the central conference, Xi stressed that in order to promote the modernization of China’s governance system and capacity along the path of the rule of law, it is necessary to require every entity, including government agencies, Party organs, social organizations and enterprises, to shoulder the responsibility of maintaining the dignity of the Constitution and ensuring its implementation.
Previously, Chinese judges were overly cautious about verifying justifiable defense, especially when selfdefense caused injuries or even death, Zhao said, even though the Criminal Law allows exemptions from criminal liability.
“But as the Constitution, which stresses respect for and protection of human rights, was promoted in recent years, judicial authorities are more prepared to identify justifiable self-defense in an increasing number of cases,” he said.
On Dec 26, 2018, a man surnamed Li broke into the apartment of a woman in Fuzhou, Fujian province, and assaulted her. After hearing a call for help, Zhao Yu, who lived upstairs, went down to stop the attack.
When Zhao Yu tried to help the woman, he was punched by Li and then fought back, pushing Li down and kicking him in the stomach. The kick injured Li, so Zhao was detained for allegedly causing injury.
But the Supreme People’s Procuratorate later announced that Zhao would not be held criminally liable because his actions could be defined as justifiable self-defense.
Zhao Li, the lawyer, said the case reassured those trying to offer help to others because, as the Constitution requires, their legitimate rights will be guaranteed.
He also welcomed the guideline clarifying the parameters of justifiable self-defense, which was jointly issued by the top procuratorate, the Supreme People’s Court and the Ministry of Public Security in September, saying it represented major progress in putting the spirit of the Constitution into legal practice.
Since 2012, when the central leadership highlighted the status and significance of the Constitution, more people have realized that the basic rights and principles in specific laws can be found in the fundamental law, and that the Constitution’s spirit is also key in making laws and driving the legal process.
After the Constitution was amended in 2018, its study and enforcement have been stepped up and promoted in every walk of life, including the Standing Committee of the National People’s Congress, which is China’s top legislature, and the courts.
Review of documents
For instance, the NPC Standing Committee has intensified its supervision of all normative documents — such as administrative regulations, rules and judicial interpretations — issued by government agencies, courts and local legislatures to ensure they do not conflict with the Constitution and national laws.
According to a report by the top legislature, about 2,000 normative documents were submitted to it for review last year, with 506 requiring correction after being found to be inconsistent with the Constitution and national laws.
Qin Qianhong, a professor specializing in the Constitution at Wuhan University in Hubei province, welcomed the top legislature’s reviews, saying that many government agencies are now paying close attention to strictly abiding by the Constitution and implementing its spirit when handling administrative matters and drafting regulations.
He added that some government departments have invited legal consultants or experts to guide their drafting of regulations to prevent inconsistency with the Constitution from the start.
In May, the top legislature adopted the National Security Law for Hong Kong to uphold the authority of the Constitution and the Basic Law of the Hong Kong Special Administrative Region.
In June, a number of legislators proposed adding a new crime to the Criminal Law to better reflect constitutional provisions related to education after two people in Shandong province were found to have stolen others’ identities and test scores to enter universities.
Xu Xianming, a member of the NPC Standing Committee, said at the time that stealing someone’s identity to get into a college goes against the Constitution, “as receiving education is a basic right granted by the fundamental law”.
In the latest version of the draft amendment, unveiled in October, those involved in identity theft should face criminal punishment.
Qin Shuo, a judge from Beijing Haidian District People’s Court, has strongly supported constitutional protection of children’s right to education, saying that her court has been taking measures to help children who dropped out of school because their parents were irresponsible.
“In some divorce cases, a few adults fighting for custody of children prohibited the other party from meeting the kids. Some children were hidden, while some were even taken away from the capital,” she said. “It’s contrary to the Constitution and seriously harmed their right to receive an education.”
Enhanced awareness
Qin said she was glad to see that more people, including youngsters, realize the importance of safeguarding that right, as well as having enhanced awareness about solving other disputes in court, “which is inseparable from our increasingly strengthened legal education, especially that on the Constitution, in the past few years”.
On Constitution Day each year — Dec 4 — the court opens its door to students in the district, she said, helping them understand what judges do and learn more about the legal system.
To increase public interest in the Constitution and make it easier for people to gain related knowledge, Qin Qianhong, the professor from Wuhan, suggested tailoring books about it for those of different ages or in different industries to give them appropriate channels to learn more about the fundamental law.