Constitution plays bigger role in protecting human rights
Pub Date:2020-12-07 15:10 Source:China Daily
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 self-defense 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
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
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
"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."
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.