The Development of a Law-based Society Contributes to the Legal Protection of Human Rights in China - JOURNAL - Humanrights

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The Development of a Law-based Society Contributes to the Legal Protection of Human Rights in China
July 17,2018   By:CSHRS

The Development of a Law-based Society Contributes to the Legal Protection of Human Rights in China

ZHANG Yonghe*

Over the past 40 years of reform and opening up, the Party and the State have gained a richer and deeper understanding of human rights. In 1997, the 15th Communist Party of China National Congress Report put forward "respect for human rights". In 2004, the idea that "the State respects and protects human rights" was written into the Constitution, which means that "respect and human rights" have become a basic constitutional principle. In 2012, the 18th CPC National Congress Report put forward the new requirement that "human rights must be earnestly respected and protected". In 2014, The Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law proposed to "enhance the awareness of the entire society to respect and protect human rights" and to "promote public awareness of rule of law". The Decision outlined a gradual process for the Party and the State to enhance human rights, which includes a general understanding of human rights, the implementation of human rights, and the application of the rule of law to respect and protect human rights.

The 19th CPC National Congress Report proposed to "enhance the legal protection of human rights", which is a milestone for the Party, the State, and the entire society to respect and protect human rights for the past two decades. On December 15, 2017, the State Council Information Office (SCIO) published a white paper entitled New Progress in the Legal Protection of Human Rights in China, which fully demonstrated the achievements of the legal protection of human rights in China since the 18th CPC National Congress and also outlined a blueprint for the legal protection of human rights in the future. The new idea of the "legal protection of human rights" introduced in the white paper is a milestone in the "new efforts" since the 18th CPC National Congress to move toward a new era of human rights protection, and a new interpretation of "better legal protection of human rights" put forward in the 19th CPC National Congress report, which is a "new journey, a new mission, and a new task". Human rights can only be protected through legal means.

Generally speaking, it is easier for the legal protection of human rights to be demonstrated through legislation, law enforcement, and justice and through law-based State and law-based government. In fact, the building of a law-based society provides a crucial social foundation for the realization of the legal protection of human rights. The law must be based on society. If it has no good social foundation, it is impossible to achieve the desired outcomes or full effects of human rights protection, or worse, the law will be useless. Therefore, a stronger social foundation is the key to the legal protection of human rights in China. New Progress in the Legal Protection of Human Rights in China devotes for the first time a special chapter on the social foundation for the legal protection of human rights in China and clearly demonstrated the role of bottom-up building of a law-based society in ensuring the legal protection of human rights in China.

First, social autonomous organizations, together with their legalization, provide new vitality and energy for legal protection of human rights. The Party and the State play a leading role in promoting the legal protection of human rights. However, social organizations are also an important player in building a society governed by law and in ensuring the legal protection of human rights. Only a country that cultivates and develops vibrant, dynamic social organizations that can assume public social power and can supplement government public power can provide a pluralistic, constructive, and protective mechanism for law-based society and new impetus for legal protection of human rights. Urban and rural grassroots autonomous organizations are the main forms in which people exercise their democratic rights and perform self-management, self-service, and self-development in accordance with the law. Since the 18th CPC National Congress, the Government has continuously improved grassroots autonomous organizations. This is realized through villagers' deliberations, neighborhood negotiations, villagers or residents hearings for policymaking. People have a better awareness of democracy, promote the healthy development of democracy at the grassroots level, and ensure their democratic rights through self-management, self-education, self-service, direct election of their own leaders, participation in the villager and resident conferences, formulation of and compliance with autonomous charters, transparency of village economic affairs, democratic appraisal of rural and urban neighborhood committee members, and regular village committee reports. In addition to urban and rural grassroots autonomous organizations, other social autonomous organizations also play an important complementary role in the legal protection of human rights. At present, there are about 18 types of social organizations in China, including those in environmental protection, animal welfare, community development, AIDS prevention, and gender and sexual minorities. The emergence of a large number of social autonomous organizations, together with their legalization, has made the legal protection of human rights in China more vibrant and energetic.

Second, the development of social behavior norms and their legalization have broadened the scope of legal protection of human rights. Social behavior norms include the "hard laws" such as national laws and regulations and also the "soft laws" such as social autonomy. The governance of modern society is increasingly manifesting its diversified nature. Groups at the social level are formulating more regulations that regulate the behaviors of their members, such as citizen's conventions, township rules and regulations, industry regulations, and group regulations. This represents a great body of norms for the legal protection of human rights. Since the 18th CPC National Congress, the "soft laws" developed by social groups have become increasingly abundant, including industry regulations in different fields and group constitutions. Especially, advocated by autonomous governance organizations in urban and ruralareas, that is villagers' committees and community residents' committees, more and more people have started to abide by the codes of conduct taking the forms of township regulations and civil conventions in their social governance activities. The "soft laws" such as social norms play their due role in legal protection of human rights.

Third, the establishment and legalization of mechanisms for settling social disputes expand the channels for the legal protection of human rights and achieve better legal protection for human rights. These mechanisms can be divided into formal and informal ones. The formal ones are based on the government's decisions on disputes. Informal mechanisms are those such as the mediation, consultation, and coordination mechanisms implemented among people and social organizations as stipulated in the People's Mediation Law. Informal dispute resolution mechanisms provide new alternatives for resolving human rights disputes. With social mechanisms for resolving disputes and their legalization, a large number of disputes and conflicts involving the protection of people's rights can be solved and remedied without being submitted to the government. This represents a low-cost and high-performance way of ensuring the legal protection of human rights and a higher level of legal protection for human rights. 

"If a tree is to grow, its roots must be consolidated. If a river is to flow far away, its waterway must be dredged." A good social foundation is the key to the legal protection of human rights. Social autonomous organizations, social behavior norms, and social dispute resolution mechanisms are of great significance for the realization of more standardized, more powerful, and more effective legal protection of human rights. With socialism with Chinese characteristics having entered a new era, a new situation of law-based governance of the country has also begun. We must further strengthen social development and its rule of law, consolidate the social foundations for the legal protection of human rights, and form a multi-level, multi-field, and multi-dimensional legal protection mechanism for human rights.

(Translated by JIANG Yu)

* ZHANG Yonghe ( 张永和 ), Executive Director and Professor of the Human Research Institute, Southwest University of Political Science and Law.

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