Human Rights : Constitutional and Judicial Framework of China

The State organs of the People’s Republic of China include the National People’s Congress, the President of the People’s Republic of China, the State Council of the People’s Republic of China, the Central Military Commission of the People’s Republic of China, local People’s Congresses and People’s Governments at all levels, the organs of self-government of the national autonomous areas, the People’s Courts and the People’s Procuratorates.

The system of people’s congresses is a basic political system in China. All power in the People’s Republic of China belongs to the people, who exercise State power through the National People’s Congress and local people’s congresses at all levels, formulating laws and regulations and resolving important issues at the State and local levels. The system of people’s congresses, the system of multi-party cooperation and political consultation under the leadership of the Communist Party of China (CPC), and the system of regional national (ethnic) autonomy are the three major basic political systems of the People’s Republic of China. The system of multi-party cooperation and political consultation under the leadership of the CPC is the political party system of the People’s Republic of China. In addition to the CPC, a total of eight democratic parties (the Revolutionary Committee of the Chinese Guomindang, the China Democratic League, the China Democratic National Construction Association, the China Association for Promoting Democracy, the Chinese Peasants’ and Workers’ Democratic Party, the China Party for Public Interest, the Jiusan Society, and the Taiwan Democratic Self-Government League) participate with the ruling party in managing the affairs of State and in drafting and implementing laws and regulations. The Chinese People’s Political Consultative Conference is the main forum for multi-party cooperation and political consultation under the leadership of the CPC.

The Constitution

The Constitution is the fundamental law of the People’s Republic of China. The current Constitution of the People’s Republic of China was adopted at the fifth session of the Fifth National People’s Congress on 4 December 1982 and promulgated by the Congress on the same day. Amendments to the Constitution were adopted at the first session of the Seventh National People’s Congress on 12 April 1988, the first session of the Eighth National People’s Congress on 29 March 1993, the second session of the Ninth National People’s Congress on 15 March 1999, and the second session of the Tenth National People’s Congress on 14 March 2004.

The Constitution provides that the People’s Republic of China is a socialist State under the democratic dictatorship of the people, based on the alliance of the workers and peasants and led by the working class. The socialist system is the fundamental system of the People’s Republic of China. All power in the People’s Republic of China belongs to the people. The organs of State apply the principle of democratic centralism.

Incorporating the spirit of the Universal Declaration of Human Rights, the Constitution clearly provides that the State respects and preserves human rights. The “Fundamental Rights and Duties of Citizens”, in Chapter 2 of the Constitution, include the equality of all citizens before the law, the right to vote and stand for election, and the civic and political rights of freedom of speech, of the press, of assembly, of association, of procession, of demonstration, of religious belief, of correspondence, and of the person, as well as the economic, social and cultural rights to work, to leisure, to education, to social security, and to engage in cultural pursuits. The Constitution also specifically provides for the protection of the rights of women, the elderly, minors, the disabled, minority nationalities, foreigners and other special groups.

On the basis of its Constitution, China has drafted and refined a systematic series of laws to safeguard human rights. As of the end of 2009, the National People’s Congress and its Standing Committee had drafted 250 laws to protect human rights. At present, China has created a relatively complete corpus of legislation to safeguard human rights using the Constitution as the core document, and including the Legislation Law, the Criminal Law, the Criminal Procedure Law, the Administrative Procedure Law, the Administrative Review Law, the Judges Law, the Public Procurators Law, the People’s Police Law, the Lawyers Law, the State Compensation Law, the Regional National Autonomy Law, the Law on Protection of Women’s Rights, the Law on the Protection of Disabled Persons, the Law on the Protection of Minors, the Compulsory Education Law, the Property Rights Law, the Labour Law, and the Law on Safety in Production.

Article 4 of the Constitution provides that “all nationalities in the People’s Republic of China are equal. The State protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity and mutual assistance among all of China’s nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited.” Article 11 of the Civil Procedure Law provides that “citizens of all nationalities shall have the right to use their native spoken and written languages in civil proceedings. Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area, the people’s courts shall conduct hearings and issue legal documents in the spoken and written languages commonly used by the local nationalities. The people’s courts shall provide translations for any participant in the court proceedings who is not familiar with the spoken or written languages commonly used by the local nationalities.” Similar provisions are included in the Criminal Procedure Law, the Administrative Procedure Law, and the Organic Law of the People’s Courts.

The Constitution stipulates that the lawful private property of citizens shall not be infringed upon. The Property Law stipulates that the property rights of the State, collective groups, private individuals and other rights holders are protected under the law, and may not be infringed upon by any entity or individual.

Judicial framework

(a) Judicial organs

The courts and procuratorates are the judicial organs of China. Additionally, although the organs of public and State security and of judicial administration are administrative in function, they also have a partially judicial function.
The people’s courts include the Supreme People’s Court, local people’s courts at various levels, and specialized people’s courts. Local people’s courts are divided into basic, intermediate and superior people’s courts. The duties of the local people’s courts at various levels are primarily (1) to try criminal cases, punish offenders and maintain social order; (2) to try civil cases, resolve civil disputes, and protect the legitimate rights of those involved; (3) to try administrative litigation cases, protect the legitimate rights of individual citizens, corporations and other organizations, and ensure and see to it that administrative organs discharge their functions in accordance with the law; and (4) to carry out judicial judgments and rulings that have come into effect.

The people’s procuratorates include the Supreme People’s Procuratorate, local people’s procuratorates at various levels, and specialized people’s procuratorates. Local people’s procuratorates at various levels are divided into people’s procuratorates of provinces, autonomous regions and province-level municipalities; intermediate people’s procuratorates of provinces, autonomous regions and province-level municipalities; people’s procuratorates of autonomous prefectures and provincially-administered municipalities; and people’s procuratorates of counties, cities, autonomous counties and municipal districts. The duties of the local people’s procuratorates at various levels are primarily (1) to exercise procuratorial authority over major cases of treason, splitting the State and serious damage to the unified enforcement of State law; (2) directly accept, file and bring cases against, and investigate cases of offences committed by State employees; (3) review cases investigated by public and State security organs and determine whether to approve arrest, prosecute or to exempt from prosecution, as well as exercise supervision over the investigatory activities of public and State security organs to determine whether those activities conform to the law, and additionally to investigate and follow up on cases of unlawful arrests, searches, investigations and evidence-gathering; (4) initiate public prosecutions of criminal cases and support such prosecution, and exercise supervision over the criminal and civil trials and administrative proceedings of people’s courts to determine whether they conform to the law; and (5) exercise supervision over the execution of judgments and organs in criminal cases and over the activities of prisons, detention houses and organs in charge of reform through labour to determine whether such executions and activities conform to the law.

The organs of public and State security and of judicial administration are constituent parts of the organs of State administration, and also have a partially judicial function, primarily as follows: (1) the organs of public security are responsible for the investigation of criminal cases, including investigation, detention, preliminary hearing, and executing arrests; (2) the organs of State security at various levels are responsible for investigating cases of espionage, and can carry out the investigation, detention, preliminary hearing, and arrest functions of the organs of public security under the Constitution, laws and regulations; and (3) the organs of judicial administration manage the work of prisons and the reform of criminals through labour, as well as providing leadership for and supervision of lawyers, notarial offices and people’s mediation committees.

  (b)      The legal system and just judicature

China consistently maintains that all persons are equal before the law, and is working to uphold judicial and social justice and guarantee citizens’ legitimate rights through the exercise of systems of open public trials, collegial judgment panels, people’s assessors, recusal of judges, limitation of second-instance trials, and court costs assistance.

(i)       Open public trials. Trials in people’s courts are conducted in accordance with the principles of fairness, timeliness and openness. Article 125 of the Constitution provides that “All cases handled by the people’s courts, except for those involving special circumstances as specified by law, shall be heard in public”. Judgments in closed trials are uniformly pronounced in public as well. Prior notice is given for trials that are to be held in public, and citizens and reporters for the media are permitted to witness the proceedings. People’s courts also invite members of people’s congresses and people’s political consultative committees to witness that the presentation of evidence, cross-examination and the overall case proceedings are conducted openly, and provide effective information that each important segment of the process, from filing the case through the trial to the conclusory work, is carried out with a view to protecting the rights of the parties concerned.

(ii)      Collegial judgment panels. Article 10 of the Organic Law of the People’s Courts of the People’s Republic of China provides that the people’s courts shall adopt the collegial system in the administration of justice. Cases of first instance in the people’s courts shall be tried by a collegial panel of judges or of judges and people’s assessors; simple civil cases, minor criminal cases and cases otherwise provided for by law may be tried by a single judge. Appealed or contested cases in the people’s courts are handled by a collegial panel of judges. The collegial panel must comprise an odd number of members.

(iii)          People’s assessors. With the exception of summary procedural cases or cases falling under other provisions of the law, first-instance trials of civil, administrative or criminal procedural cases of relatively high social significance, as well as of cases in which the accused (in a criminal case), the plaintiff or the accused (in a civil case), or the plaintiff (in an administrative case) petitions for the participation of people’s assessors, are conducted with collegial judgment panels comprising people’s assessors as well as judges, in order to guarantee the people’s participation in the judicial process in accordance with the law, and promote fairness in the trial system. Although they are not permitted to serve as presiding judges, people’s assessors participating in collegial judgment panels under the law have the same rights and perform the same functions as other members of the panel, and exercise the same power to vote independently on the findings of the court and the application of the law.

(iv)    Recusal of judges. If a party to a case feels that a judge has a conflict of interest in that case, or that the judge has some other connection with parties to the case that would affect his or her ability to render a fair and impartial judgment, that person has the right to request the recusal of the judge concerned. If the judge is himself or herself a party to the case, or a close relative of one of the legal representatives, or feels that he or she has a conflict of interest or other interest in the case, he or she must withdraw from the case.

(v)     Second-instance limitation for trials. Article 12 of the Organic Law of the People’s Courts provides that “In the administration of justice, the people’s courts adopt the system whereby the second instance is the last instance”. If a party to the case does not accept a judgment or ruling of first instance of a local people’s court at a particular level, that party may bring an appeal to the people’s court at the next higher level within the time limit prescribed by law; and if the people’s procuratorate is of the view that a judgment or ruling of first instance is erroneous, may present a protest to the people’s court at the next higher level within the time limit prescribed by law. With the exception of death-penalty cases, which require review by the Supreme People’s Court, the superior people’s courts handle such appeals or protests as second-instance proceedings, and their judgments or rulings in such cases are considered final. Judgments and rulings of first instance of the Supreme People’s Court are also considered final.

(vi)    Court costs assistance. For parties to a case who have authentic financial difficulties, the people’s courts defer, reduce or waive entirely the payment of costs associated with the case in order to preserve the legal right of such persons to bring civil or administrative proceedings in the people’s courts. The Supreme People’s Court and the relevant authorities have issued regulations on the provision of court costs assistance to parties with authentic financial difficulties, with a view to guaranteeing the right of access of such persons to the judicial process.

 (c)      Other information regarding the judicature

               (i)      Statistics on police, judges and procurators

       As of 2009, there were 1.90 million police officers in China’s organs of public security. At the same time, there were 190,216 judges and 140,000 procurators in China. Proportionally, there were 14.6 police officers and 10.5 procurators per hundred thousand members of the overall population.

              (ii)      Criminality

       to be updated

             (iii)      Pre-trial detention

                Under the provisions of the Criminal Procedure Law of the People’s Republic of China, as amended in 1996, persons taken into custody by the organs of public security are to be questioned within 24 hours of being detained. Those discovered to have been wrongfully detained must be released immediately. If the public security organ finds it necessary to arrest a detainee before sufficient evidence has been gathered, the detainee may obtain a guarantor pending trial or be placed under residential surveillance (article 65). The period granted by a people’s court, people’s procuratorate or public security organ to a criminal suspect or defendant for awaiting trial after obtaining a guarantor shall not exceed twelve months; the period for residential surveillance shall not exceed six months (article 58).

 If the public security organ deems it necessary to arrest a detainee, it shall, within three days after the detention, submit a request to the people’s procuratorate for examination and approval. Under special circumstances, the time limit for submitting a request for examination and approval may be extended by one to four days. As to the arrest of a major suspect involved in crimes committed in a series of locations, serial offences, or crimes committed by a gang, the time limit for submitting a request for examination and approval may be extended to 30 days. The people’s procuratorate shall decide either to approve or disapprove the arrest within seven days from the date of receiving the written request for approval of arrest submitted by a public security organ. If the people’s procuratorate disapproves the arrest, the public security organ shall, upon receiving notification, immediately release the detainee (article 69).

 The time limit for holding a criminal suspect in custody during investigation after arrest shall not exceed two months. If the case is complex and cannot be concluded within the time limit, an extension of one month may be allowed with the approval of the People’s Procuratorate at the next higher level (article 124). If investigation cannot be concluded within the time limit, an extension of two months may be allowed upon approval or decision by the people’s procuratorate of a province, autonomous region or province-level municipality (article 126). If in the case of a criminal suspect liable for sentencing to fixed-term imprisonment of ten years or longer, investigation of the case can still not be concluded upon expiration of the extended time limit as provided in Article 126, another extension of two months may be allowed upon approval or decision by the people’s procuratorate of a province, autonomous region or province-level municipality (article 127). If, owing to special circumstances, it is not appropriate to hand over a particularly grave and complex case for trial even within a relatively longer period of time, the Supreme People’s Procuratorate shall submit a report to the Standing Committee of the National People’s Congress for approval of postponing the hearing of the case (article 125).

 In cases that a public security organ has completed investigating and has transferred to it, a people’s procuratorate shall decide within one month whether or not to recommend bringing it to court; an extension of a half month may be allowed for major or complex cases (article 138).

 Chinese judicial authorities make their decisions regarding the pre-trial detention of criminal suspects in strict accordance with the relevant provisions of the Criminal Procedure Law.

(iv)      Death penalty system

 China has not yet abolished the death penalty, but controls it strictly and applies it sparingly. It is applied only to a very few criminals who have committed the most serious crimes, and is not imposed on persons who had not reached the age of 18 at the time the crime was committed or to women who are pregnant at the time of trial. In order substantively to reduce the use of the death penalty, China has instituted a death-penalty reprieve system, whereby execution is postponed for two years in cases when not immediately required; if no further crimes are deliberately committed during the two-year reprieve period, the sentence is reduced to life imprisonment, or to 15 to 20 years’ fixed-term imprisonment for particularly meritorious behaviour.

 From 1 July 2006 onward, all death-penalty trials of the second instance have been conducted publicly. From 1 January 2007 onward, all death-penalty review powers have uniformly reverted to the Supreme People’s Court. In principle, the review of a death penalty by the Supreme People’s Court entails the arraignment of the accused, and a visit to the scene of the crime when necessary. The Supreme People’s Court is currently in the process of improving the death-penalty review procedure, and unifying standards for the application of the death penalty, so as to ensure that such cases are reviewed with rigour, discretion and fairness.

 (v)      Legal aid

 The new Criminal Procedure Law and the Law of the People’s Republic of China on Lawyers, adopted in 1996, both contain provisions on legal aid. If the defendant involved has not engaged anyone to advocate on his or her behalf owing to financial difficulties or other reasons, the People’s Court may designate a lawyer who has the duty to provide legal assistance by advocating on his or her behalf. If the defendant is blind, deaf or mute, or is a minor, and thus has not engaged anyone to advocate on his or her behalf, the People’s Court shall designate a lawyer who has the duty to provide legal assistance by advocating on his or her behalf. Where citizens require legal assistance with regard to support, industrial injury, criminal procedure, claims for State indemnity and claims for pension payments under the law, they may, if they cannot afford to pay the service fee, obtain legal aid in accordance with the provisions of State laws.

 In 1997, China established a Legal Aid Centre in the Ministry of Justice, to provide unified leadership and consultation on legal assistance work nationwide. The China Legal Aid Foundation was established at the same time, with the primary function of collecting, administering and using funds for legal aid, as well as publicizing the national legal aid system and promoting a just judicature. Legal aid centres are also being established throughout the country at the provincial and prefectural-municipality levels, as well as in local counties and districts that meet the requirements, in order to organize and carry out legal aid work. In counties and districts that do not meet the requirements for setting up a legal aid organ, the substantive organization of legal aid work is carried out by the county or district justice bureau. Currently, a four-tiered organizational framework for legal aid in China has been put in place at the national, provincial, prefectural-municipality, and county or district levels; a total of 318,514 legal-aid cases of all types had been handled throughout the country as of 2006, and legal information services had been provided 3,193,801 times.

Major international human rights instruments ratified by China

Major international human-rights instruments ratified or acceded to As of 2009, China had ratified or acceded to the following major international human-rights instruments:

(i) The International Covenant on Economic, Social and Cultural Rights;

(ii) The International Convention on the Elimination of All Forms of Racial Discrimination;

(iii) The Convention on the Elimination of All Forms of Discrimination against Women;

(iv) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

(v) The Convention on the Rights of the Child;

(vi) The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict;

(vii) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; and

(viii) The Convention on the Rights of Persons with Disabilities.

China signed the International Covenant on Civil and Political Rights in 1998. The competent authorities are in the process of instituting legislative and judicial reforms with a view to reducing, to the greatest degree possible, conflicts between national legislation and policies and the provisions of the Covenant, and thereby creating the conditions for its early ratification. The ratification process will accelerate as China pursues the fundamental principle of the rule of law and thoroughgoing judicial reform.

Ratification of or accession to other international instruments related to human rights

(a) Ratification of or accession to other United Nations human-rights instruments

China has ratified or acceded to the following other United Nations human-rights instruments:

(i) The Convention on the Prevention and Punishment of the Crime of Genocide;
(ii) The Convention Relating to the Status of Refugees and its Protocol;
(iii) The United Nations Convention against Transnational Organized Crime; and
(iv) The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.

(b) Ratification of or accession to instruments of the International Labour Organization

China has ratified or acceded to the following instruments of the International Labour Organization:

(i) The Convention concerning the Application of the Weekly Rest in Industrial Undertakings (No. C14);
(ii) The Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. C100);
(iii) The Convention concerning Discrimination in Respect of Employment and Occupation (No. C111);
(iv) The Convention concerning Employment Policy (No. C122);
(v) The Convention concerning Minimum Age for Admission to Employment (No. C138); and
(vi) The Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. C182).

(c) Ratification of or accession to instruments of the Hague Conference on Private International Law

China has ratified or acceded to the following instruments of the Hague Conference on Private International Law:
(i) The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;
(ii) The Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters; and
(iii) The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
(d) Ratification of or accession to the Geneva Conventions and other instruments of international humanitarian law

China has ratified or acceded to the following Geneva Conventions and other instruments of international humanitarian law:

(i) The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
(ii) The Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;
(iii) The Geneva Convention relative to the Treatment of Prisoners of War;
(iv) The Geneva Convention relative to the Protection of Civilian Persons in Time of War;
(v) The Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts;
(vi) The Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts;
(vii) The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its First Protocol;
(viii) The 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques;
(ix) The 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare;
(x) The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction;
(xi) The 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Protocol I on Non-Detectable Fragments, Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons, Protocol IV on Blinding Laser Weapons, and Protocol V on Explosive Remnants of War; and
(xii) The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.

10 March 2011

SOURCE: UNO Core document accompanying the second report of the People’s Republic of China on its implementation of the International Covenant on Economic, Social and Cultural Rights.