Calls for and attempts to rendering the Chinese Constitution meaningful in judicial adjudication have officially stopped in 2008, when the decision by the Supreme People’s Court based on the Constitutional Right to Education of Qi Yuling was withdrawn years after it had been made (find the somewhat odd story about a student who has stolen another’s identity to enter college and the ensuing case here). The move has made it clear that the authorities do not wish that the Chinese Constitution serve as a legal basis for judgments. However, judges continue to invoke the Constitution, if less as a direct legal basis, but more so in the reasoning part of their decisions. As judgments by courts from all over China were gradually being entered into an open-access database, Daniel Sprick seized the opportunity asked: If it is not permitted as legal basis, in what ways does the Constitution still play an authoritative role in adjudication?
The quest for today’s functions of the Constitution in the daily adjudication work of local judges appears even more significant when considering the growth of a net of legislation that offers judges alternative legal sources to choose from. A law laying down the Right to Education for example was not yet existent when the controversial Qi Yuling case was first decided on.
For this study, Sprick looked at case groups invoking the Constitution that concerned disputes over citizen’s duty to support elderly parents, land administration or the right to work. Cases, where the Constitution is being referred to due to a lack of lex specialis particularly emerge from disputes over land administration. However, in most cases Sprick found in the database, invoking the Constitution would indeed technically not have been necessary- other laws are the decisive base. Nevertheless, judges are “seeking a higher authority in order to frame a more compelling argument and exhibit an understanding of the constitution as a programmatic document that links the CCP’s policies with the state law.”
Apart from functioning as a link of law and CPC policy, he further finds the Constitution as useful tool for judges working on tort law cases. More precisely, the right to work is being referred to when interpreting relevant statutes, stressing the rights of seniors who were working even though they had reached the retiring age: “the use of the constitution demonstrates that the courts are here filling a legislative gap for the purpose of social justice.” Given the propaganda campaigns calling the general public for the “implementation” and “ardent study” of the Constitution in the aftermath of its amendment in 2018, Sprick’s research appears as relevant as ever.
There is a complex strategy behind the fierce measures the People’s Republic’s leaders applied to curb the spread of COVID-19, argues Felix Wemheuer, Professor for China Studies at Cologne University (in German). A lockdown is easily enforceable in gated communities, which make up the most part of cityscapes in China: If a citizen’s QR-Code does not show green, but yellow or even red, access is denied to parks, restaurants, public transit, residential areas and one’s workplace. Companies work hand in hand with the local administration, the Chinese army and the Communist Party, the latter of which already celebrates the victory over the pandemic as its own achievement.
The army also plays a key role: It constructed a hospital in Wuhan within ten days and provides crucial expertise in the area of virology gained from experience in fighting diseases abroad as well as their work on biological warfare. Further, blacklisting has in many localities become an additional punishment for concealing one’s health history, disregarding compulsory quarantine or trading medical supplies illegally.
While Chinese diplomats aggressively spread a success story to the world, Wemheuer says it is too early to make a final judgment about the effectiveness of the People’s Republic’s measures. “[…] in this global epidemic, the schematic comparison of authoritarian and democratic systems can do little to explain why countries are affected to varying degrees by the epidemic”, Wemheuer explains in an interview with DW (in German). “Freedom of information by itself is no guarantee that measures against an epidemic will be taken quickly, as the cases of the USA and the winter sports industry in Tyrol have demonstrated. The pursuit of profit can also be a reason for cover-up.”
Recent Covid19-related restrictions on entering the People’s Republic aside, foreign immigration in China has been on the rise and is becoming more diverse. Besides high-skilled foreigners from developed countries, the number of foreign students, many from lesser developed countries low-skilled laborers and marriage migration increases. Pieke, Ahl, Barabantseva, Pelican, Speelman, Wang and Xiang have analysed how the increasingly diverse foreign immigration is shaping Chinese society.
Along with the rising numbers, the legal framework has undergone fundamental reformation. In a forthcoming chapter now available on SSRN, Björn Ahl and Pilar-Paz Czoske have observed on the one hand that streamlined application procedures that are available online and clarified competences have increased efficiency whereas the classification scheme of different categories of foreign nationals has enhanced transparency. On the other hand, recent reforms have been more symbolic than functional and the protection of rights of migrants has not been significantly improved by recent reforms. With regard to international law, China has not ratified the Convention on the Protection of the Rights of Migrant Workers and does not model the protection of labour rights of foreign nationals on the equal treatment principle as it is embodied in the Convention. However, China voted for the Global Compact for Migration after being actively involved in its drafting process and further committing itself in this context to improve national migration legislation.
The chapter on the Reform of Chinese Migration Law and the Protection of Migrants’ Rights for ‘East Asian Migration Governance in Comparative Perspective: Norm Diffusion, Politics of Identity, Citizenship’ is available here.
Our year 2020 began with a new research project: Funded by the Fritz Thyssen Stiftung, we will explore the Chinese social credit systems and the development of smart courts. The Chinese social credit system initiative is intended to systematically assess the trustworthiness of citizens in complying with law, moral norms and professional and ethical standards. Nudging through rewards and punishments, restricting access to public transport, hotels, educational institutions and social security systems shall induce compliance. The social credit system initiative is designed as a comprehensive instrument of social control and a cure-all tool for societal ills that aims at upgrading the Chinese authoritarian system. The research project addresses three interlinked issues that are fundamentally transforming Chinese society and will have an impact that goes far beyond the Chinese state: (1) the rise of assessment systems of individual social behaviour that circumvent, supplement and change legal regulation as well as traditional law enforcement mechanisms; (2) the development of smart courts that are partially changing into automated decision makers through an increased use of big data and AI and (3) the legal regulation of social credit systems, in particular the legal protection of personal data.
Under the guidance of Prof. Dr. Björn Ahl, our team (Haixu Yu, Lu Yu and Marianne von Blomberg) will pool their skills from various backgrounds to excavate the dynamics and impact of the transformative developments social credit systems in China bring about.
In June 2018, China opened two
International Commercial Courts (CICC) in Shenzhen and Xi’an, which were widely
received by the international public in terms of challenging the dominance of
so far mainly western-led institutions for the resolution of commercial
disputes. These courts were heralded by Chinese judicial officials as
innovative hubs for flexible dispute resolution that would provide crucial
services needed for the further development of the BRI. Even though the unique
structure of these courts as one-forum-stops for commercial dispute resolution
may be considered a deviceful tool for resolving BRI disputes, their role as
agents in China’s quest for a heightened influence in shaping the international
economic legal order may globally be of even more significance. The Supreme
People’s Court as responsible agency for the CICCs issued a normative document
late in December 2019 outlining the purpose of these courts as inter alia tools
for promoting China’s rising position in the international legal discourse. The
CICC’s adjudicative work should therefore be measured not only from the
perspective of effective and fair dispute resolution for BRI conflicts but also
as part of China’s agenda in using the BRI’s entangled legalities across
different jurisdictions to shape legal developments outside China.
Daniel Sprick and Nora Sausmikat have investigated the courts and their impact in terms of their influence on the global order and presented their study to the EU Parliament. You can find it here.
Pilar-Paz Czoske and Cui Xu looked at the level of labour rights protection of
foreign nationals in China. Their study discovered considerable differences of
levels of protection provided by Chinese courts to foreign nationals in labour
disputes. In general, courts in Beijing and Guangzhou extended significantly
better legal protection to foreign employees than courts in Shanghai. Both
groups, foreign employees with and without a valid work permit, do not receive
the same level of labour rights protection as Chinese nationals. The
legislative framework that governs employment relations between local employers
and foreign employees is still based on the assumption that foreign employees
do not need comprehensive statutory protections of labour rights. International
law that aims at protecting migrant workers acknowledges the equal treatment
of nationals and non-nationals with regard of the protection against unjustified
dismissal as a minimum standard. The Chinese legislator should consider bringing
the current legislation in conformity with international standards.