Weak Courts, Weak Rights: Assessing the Realisation of Constitutional Rights in the PRC Courts
32 Pages Posted: 12 Oct 2013
Date Written: September 1, 2013
Like many other constitutions, the Chinese Constitution (1982) enumerates a list of fundamental rights that citizens can enjoy. The 2004 Constitutional Amendment adds the phrase "The state respects and preserves human rights" to art. 33 and marks a new page in rights protection in China. However the violation of citizens’ constitutional rights and freedoms by the PRC government and its officials and the unavailability of judicial remedies to curb this phenomenon have long been criticized inside China as well as outside. As a result, the realization and guarantee of rights and freedom is far from being satisfactory. Firstly, focusing on the implementation of constitutional rights clauses, this article analyses why the current constitutional legal framework discourages direct application of the Constitution by/in the courts. Secondly, it examines the attempts made by the PRC courts in the recent past, and discusses their significance in the protection of such rights. Thirdly, it further argues that although there can be no foreseeable substantial institutional breakthroughs in the current context of law and politics, the courts as positive enforcer of the Constitution can still play a limited but important and irreplaceable role in realizing constitutional rights. To achieve it, a "dual-track approach" that involves both the NPCSC and the courts is promoted.
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