BY WANG SHIHU

Wang Shihu, deputy director of the State Laws Division of the NPC Law Committee

  Respect for and protection of human rights is a constitutional principle for China. China's Constitution states: "The State shall respect and protect human rights." In practice, this constitutional principle serves as an important guideline for the making and enforcement of laws.

   First of all, this constitutional principle is fully embraced in China's lawmaking. Lawmaking is meant to rationally prescribe rights and duties of citizens, legal persons and other organizations while defining the powers and responsibilities of state organs, with a view to ensuring that society will develop in a harmonious, orderly way. Secondly, the constitutional principle of respecting and protecting human rights is fully implemented in the course of law enforcement. In other words, state organs and their functionaries must have a clear understanding of their duties as public servants, and on no account must they abuse the powers in their hands to infringe upon the legitimate rights and interests of individual citizens and/or legal persons. 

   The author would like to discuss how human rights protection is ensured in China from the perspectives of both lawmaking and enforcement of law.

    I. Examination of Legislative Acts

All acts of legislating must fully embody the constitutional principle of respecting and protecting human rights. The Constitution is the fundamental law of China's legal system, and the state laws are its main part. This legal system also comprises administrative regulations, local legislation, regulations and separate regulations concerning self-government in ethnic autonomy regions, as well as other definitive documents. State laws are made by the National People's Congress (NPC), China's highest legislature, or the NPC Standing Committee. Local legislation is made or approved by provincial-level people's congresses or their standing committees, which shall be reported to the NPC Standing Committee and the State Council, China's central government, for the record. People's congresses in ethnic autonomy regions shall enjoy the right to formulate regulations and definitive regulations for self-government by proceeding from their own political, economic and cultural conditions. To be effective for implementation, self-government regulations and definitive regulations formulated by ethnic autonomous regions shall be submitted to the NPC Standing Committee for approval; those by autonomous prefectures and autonomous counties, to the standing committees of the respective provincial, autonomous regional or municipal people's congresses for approval. None of the state laws, administrative regulations and local legislation shall contravene the Constitution. To ensure uniformity of the state legal system, the NPC shall enjoy the constitutional right to alter or revoke any NPC Standing Committee decision it deems inappropriate. The NPC Standing Committee shall have the right to revoke any administrative regulation, decision or order of the State Council it deems contravening the Constitution or any state law. The NPC Standing Committee shall also have the right to revoke legislations and decisions adopted by organs of state power in provinces, autonomous regions and municipalities so long as these are deemed contravening the Constitution, state laws or administrative regulations of the State Council.

The Legislation Law of the People's Republic of China provides a complete set of procedures for the examination by the NPC Standing Committee of administrative regulations and local legislation. The State Council, the Central Military Commission, the Supreme People's Court, the Supreme People's Procuratorate, or the standing committee of the people's congress of a province, autonomous region or municipality may request, in writing, the NPC Standing Committee to examine an administrative regulation, a local regulation, an autonomous regulation or a separate regulation deemed contravening the Constitution or a state law. Working organs of the NPC Standing committee shall submit such requests to the relevant special committees of the NPC for examination and opinions. Other organs of state power, people's organizations, enterprises, institutions and individual citizens may propose, in writing, to the NPC Standing Committee for examination of an administrative regulation, a local regulation, an autonomous regulations or a separate regulation they deem contravening to the Constitution or a state law. Working organs of the NPC Standing Committee shall study the proposal and if it deems necessary, shall submit the proposal to the relevant special committees of the NPC for examination and opinions. 

 Upon discovery that an administrative regulation, a local regulation, an autonomous regulation or a separate regulation does contravene the Constitution or a state law, the relevant NPC special Committee may inform, in writing, the organ that has formulated it of its opinions. The NPC Law Committee may, jointly with the NPC Special Committee, hold a meeting to examine the issue. The meeting must have the participation of a representative from the organ that has formulated the administrative regulation, local regulation, autonomous regulation or separate regulation. Then the result of the joint examination shall be submitted, in writing, to the organ. The organ shall decide whether a revision is needed, and inform the NPC Law Committee and the relevant NPC special committee of this decision. 

 Whereas the NPC Law Committee and the relevant NPC special committee decide that the regulation in question contravenes the Constitution or a state law while the organ that has formulated it refuses to revise it, the NPC Law Committee and the relevant NPC special committee may submit, in writing, their opinions along with a proposal for revocation of the regulation. The proposal shall be examined by a session of the NPC Chairmen's Presidium to decide whether the issue will be deliberated by the NPC Standing Committee.

In 2004, the NPC Law Committee, on its part, set up a special official to strengthen the examination of administrative and local regulations.

  II. Examination of Administrative Acts

  Examination of administrative acts is possible through the following three channels:

  Firstly, the NPC and the standing committees of local people's congresses at and above the county level supervise over work of the governments of the corresponding levels and have the right to revoke decisions and orders of the governments that are deemed inappropriate. Likewise, the people's congress of a township, an autonomous township or a town may revoke inappropriate decisions or orders of the township, autonomous township or town government. China practices the people's congress system, under which the NPC and local people's congresses are organs of state power at different levels and as such, exercise state powers on behalf of the people. People'sgovernments are chosen by people's congresses of corresponding levels, and so are people's courts and people'sprocuratorates, for which they are responsible, to which they report their work, and under whose supervision they perform their duties. Supervision by people's congresses has proved effective in addressing human rights problems. In 2003, through investigation into implementation of the Construction Law, the NPC Standing Committee found that delinquency in payment to construction contractors had caused the problem of migrant workers?wages held in arrears. The committee lost no time to demand that governments at various levels take effective measures to address the problem and for several years in a row, it kept monitoring progress of the work in this regard. By June 2006, 175.3 billion yuan in delinquency construction funds had been recovered. Migrant workers across China had received 33.6 billion yuan in wages that had been held in arrears, accounting for 99% of the total their employers had failed to pay them on time. 

 Secondly, the State Council has the right to alter or revoke inappropriate orders, instructions and rules of the various ministries and state commissions and of administrative organs at various local levels. Local governments at the county and higher levels have the right to alter or revoke inappropriate decisions of their working departments and of governments at the next lower level. Under China's Constitutions, local governments are responsible for governments of the next higher level and report their work to them. Local governments at all levels are administrative organs of the state under the unified leadership of the State Council and as such, are subject to supervision by the State Council. 

 Under the Administrative Reconsideration Law of the People's Republic of China, a citizen, legal person or any other organization who considers that his or its lawful rights and interests have been infringed upon by a specific administrative act by an administrative organ may apply to the administrative organ of the next higher level for a review of the case in accordance with law. The administrative organ that accepts the application shall make a decision of administrative reconsideration on the case within the legally prescribed time limit. While applying for administrative reconsideration, the applicant may simultaneously demand an administrative compensation and the organ that accepts the application shall make a decision on whether to endorse or reject the demand. The applicant may file an administrative lawsuit if he or it refuses to accept the administrative reconsideration decision.

Thirdly, people's courts are empowered to examine the specific administrative acts of a people's government. According to the Administrative Procedure Law, citizens, legal persons or other organizations may file a lawsuit against the following administrative acts:

 1. Administrative penalties including detentions, fines, revocation of licenses or permits, orders for suspension of business and confiscation of property;

 2. Compulsory administrative measures such as restriction on personal freedom and sequestration, and distress or freezing of property;

3. Infringement by an administrative organ upon the lawful independence for business operations;

4. Refusal by an administrative organ to issue a permit or license or to respond even though an application is deemed as meeting the lawful requirements for obtaining the license or permit;

5. Refusal by an administrative organ of an application for performing its statutory responsibility for protection of the applicant's right of the person or property right or to respond to the application of the applicant;

 6. Alleged failure of an administrative organ to issue a pension called for by law;

7. Alleged act in violation of law on the part of an administrative organ in demanding fulfillment by the applicant of certain obligations;

 8. Alleged infringement by an administrative organ upon the right of the person or the property right of the applicant.

 The people's court shall, through hearings, order revocation or partial revocation of an administrative act in the following instances while ordering the administrative organ involved to take a new administrative act:

1. Insufficient evidence produced by the administrative organ;

2. Erroneous application of the relevant laws and regulations;

3. Violation of the legal procedures;

4. Transgression of the administrative organ of the limit of its powers;

5. Abuse of administrative powers.

  Whereas an administrative organ fails to perform its statutory duties, the court may order it to perform such duties within a prescribed time limit. Whereas an administrative penalty is obviously unjust, the court may order an alteration to it.