Human rights constitutions - Essay Example

? RESEARCH (Your teacher’s due 1 Introduction Government of a country is not only reliable to have duties and powers but also imposes national constitutions containing various provisions which guarantee fundamental human rights of citizens and helps in strengthening relationships between state and individual. One of the main constitutions enforced in China instituting human rights is the People Republic of China. It is commonly known as PRC Constitution, with no exemptions. However, some legitimate rights in China do not provide any guarantee which is worthless. Though presently it is enforced, in spite of fact either someone will be able to take judicial remedies, regardless of identifying by whom or how it will be committed, this is entirely a different issue. It is imperative to identify that either there should be a mechanism in China to enhance the effective enforcement of rights protected by constitution. Unless and until this is enforced, constitution will not result in a working or living element of social reality. Therefore in order to study the importance of these things in China it is imperative to identify effectual mechanism of constitutional enforcement, studying the relationship of politics and law which influences the progress of constitutional development tin China. To study the importance of constitutionalizing human rights this research paper focuses on significance of PRC Constitution which was laid down on human rights in China. It involves studying all aspects such as politics, law, human rights, governance and studying judicial involvement in constitutional enforcement. China requires redesigning its constitutional reforms and should give more importance to the regime (Abbott K W, 2000). 1.2 Human rights Human rights policy in China is based on two pillars. First is the system where member of states negotiate with the commissioner on human rights which was established in 1946 by social and economic council. Second is human rights treaty body and conventions which states commits through legal rectification and actions. This human rights policy has supported the state in protecting and promotion of citizens. Value oriented human rights practiced by China have laid the principles of statehood such as ethnicity, nation, culture, ideology and religion. It serves as a constrain between arbitrary and state hegemony, by protecting individuals rights and provides the foundation of building a relationship among citizens and states. It is the cornerstone for establishing constitutions in relation to human rights which are determined by international law and in public. It includes both WTO rules and ILO standards. Thus, human rights are highly controversial and political. All states are requires to protect and respect human rights and should do everything to fulfill their desires. In recent general assembly in China, stressed on the fact that these rights are indivisible, universal, interdependent, interconnected and mutually reinforcing. All states irrespective of differences in cultural, political and economic perspectives should protect and promote human rights. The human rights treaty body imposes China legal system to comply with the monitoring committees in order to ensure effectiveness in the system. State is obliged to submit a periodic report on treaty bodies, in order to review their objectives, present situation and supply assistance at national level. This will help to monitor the entire system effectively and to propose relevant changes in it (Dong Zhenang, 2000). 1.3 The importance of constitutionalizing human rights Importance of constitutionalizing human rights has increased in almost all the countries. Almost all the countries in the world have their own national constitutions. They not only emphasize on the rules and regulations led by the government but also emphasizes on legitimate obligations and rights of citizens. In relation to Chinese constitutional law all parties such as enterprises, state organs, individuals and political parties are obliged to follow the constitution. This constitution has given more priority than any other legislation or regulation enforced in China, this means that in very rare conditions, administration or legislative parties engage in such activities which may contradict the constitutions related to human rights. In order to develop the law rules in China, reliability on just the state organs is not sufficient for the integration of constitutions. The essential thing is that there should be a robust system exclusively to handle the procedures of constitutional reviews and legislation in relation to human rights. Otherwise, remedies in relation to judiciary cannot be obtained on the basis of injustice results as seen in the state where law persons work for their legitimate interest and rights. Most people in China are nowadays, strengthening the efforts for the implementation of constitution related to human rights. They prefer reinforcement of leadership to establish Chinese communist party, which is an addition to the domain of state politics, rather than preferring law schemes which can be easily adopted by conventional legislations. This had helped to enhance the constitutions issues by law legislations to provide human rights to its citizens. In accordance with the comments of chief judge of Civil Division in an article on constitutional reforms in relation to human rights emphasized on the fact that people of China are over emphasizing the constitution laid by PRC. The main reason of this is that citizens have limited understandings in relation to the constitution which mostly rely upon judicial proceedings or they just treat this legal political document which has to be followed with respect without even identifying what rights it prescribes to the citizens. Laws and politics of China follow longstanding constitutional reforms in relation to the rights of citizens, through political and judicial forces taking into account the changing legal and environment conditions (Hand Keith J, 2006). Factors affecting constitutional development in China There are many factors which affect constitutional development of human rights in China. Some of which are described below: Political regime Parties or leaders related to sovereignty impose different type of laws and operating rules in relation to various societies. In China, constitutional amendments and enactment are handled by National People’s Congress. Since 1949, China has been directed and ruled by CCP, this was formed to ensure that all principles are adhered and followed appropriately. Social democracy can be developed by combining the leadership of all the parties and by ensuring that mainly master of a country are their citizens and they are the one who will rule the country. Leadership of party provides a fundamental guarantee to these phenomena that people are the real masters of a country and are with the view that a country is mainly ruled on the basis of laws and regulations. To strengthen this phenomenon that people are the rulers, there is a requirement of socialist democracy. While ruling a country on the basis of law is the most common principle used by many politicians. The core leadership in China is CCO which have also promoted socialism in the country. This means that the communist party supports people to act as masters of the country (Lin Chris, 2003). Framework of governance Senior leaders of China have given an affirmation that the facilities provided by CCP have significant implications in Chinese constitutional law. The organizational hierarchy of China shows that NPC is the only authority of legislative house in China. It is the main origin of ultimate power and enforcer of PRC constitution. All adjudicative and administrative are based on the supervision of NPC. Members of this committee have excessive powers through which they can recall, elect of even fire people from the offices who are responsible for the enforcement of constitutions related to human rights. It have also been noted that NPC have direct interference in the execution of court and administrative decisions. It participates in every action taken by state organs such as interpretation, implementation, review and deliberation. This ensures that no institution other than NPC can make decisions in relation to legislations laid by the court. In accordance with the constitution of China all power is generated through a congress of people at different levels. This congress is supervised by the government and all decisions are made in public. Some scholars think that NPC is an extended arm of CCP which helps the officials, state organs and local government. This perception is based on four grounds i.e. high number of CCP members is in NPC, constitutions laid by NPC, budget integrations laid by the party and considering state unified budget. Besides all these conventions done by institutions it is considered as the legitimate power of the state. Judiciary administration It is widely used for governance in many states including China. Separate powers are allocated to all divisions such as to the legislature, executive and judiciary; all of these are given responsibilities and rights in accordance to their respective positions in the state. The vital advantage of the enforcement of this factor is that it provides a check and balance system in the state which means no single entity will be allowed to have superiority than the other. Taking this into account, court will not be subjected to do any interference in the adjudication claims. These claims arise due to the conflict between the political interest of the present ruling party and the constitutional rights of the citizens. Every institution is restricted to follow the constitution laid for human rights. A constitution will be enforced by the court only on the basis of public confidence and integrity, in order to identify whether it is fulfilled or breached. It is the form of checking and reviewing the entire legislative system. Even courts of people are obliged that their powers should be independent and should not be subjected to the favor of any institution, individual, public or administrative organs (Li Yuwen, 2002). . 1.4 Effective Constitutional Enforcement Mechanism For effective enforcement of constitutions in relation to human rights the following two mechanisms should be considered: Judicial and Justifiability interpretability of the constitution Constitutional Justifiability refers to entering a constitution in the legislation process on legal basis in order to make judicial decisions. Fundamentals of constitutional Justifiability include interpreting, capacity to apply and specific principles, which are related to the subject matter of a dispute. This means that an individual having legitimate rights can go to court without any fear to get his or her claims. If there is any lack in judicial capacity or in constitutional disputes, this will result in overriding the constitutions laid by political, administrative, social and legislative activities. This will lead to hampering the authorities as a whole. Applications in relation to the constitution of judicial proceedings are dealt simultaneously i.e. including both citation and interpretation. However, the power of interpretation should be used in legislation because it involves disputes and court should interpret and expound the clause or wordings of the argument properly. While in citation constitutional principles in relation to abstract should be applied with judicial documents determining the rights and obligations of the citizens (Killion M Ulric, 2004). Reviewability of judicial constitutions While enforcing constitutional reforms, review of documents is essential to prevent any unavoidable consequences in relation to judicial norms. This is required by the judges to make any adjustment while enforcing a particular constitution. Ideal enforcement mechanism can be established on the basis of follow-ups, sustainability and institution. Firstly, there should be a check and balance system so that it can help in judicial review of constitutions. This can be done in Supreme Court or by using a separate institution which is used to solve and enforce constitutional disputes. Review is essential to make sure that all actions taken by legislative and executives are checked continuously and are appropriate with the constitution. Secondly, the whole mechanism should be operated independently, transparently and with responsibility. This will lead to sustainability in the constitutional process and will avoid the ad-hoc basis which is used by leaders and politicians. Each state performs differently in relation to its political and administrative values; therefore, judges should also remain impartially and should adopt professionalism in enforcing various constitutions for the benefit of citizens. It should also be noted that the entire review process along with interpretation, decision and judgment should be made available to the public. Finally, after the completion of review, follow up measures should be executed in relation to the enforcement of constitution, highlighting the administrative and legislation act. Involvement of the judiciary in constitutional enforcement NPC committee in China is playing conflicting roles under the constitution of PRC, laid by the government for human rights. While, they are obliged to the amendment, enactment and interpretation of all the state activities, but these things are performed partially, in spite of the exclusive powers and rights provided to them by the Supreme Court for the enforcement of constitutions related to human rights. Unlike many western countries, such as Germany and United States mainly judiciary is liable for all constitutional and statutory activities. But in comparison to it, in China these are not maintained by judiciary but all activities are handled by the legislative state house. This means that all powers of laws are handled by NPC, which are mainly based upon their own political and social justifications; human rights are hardly considered or implemented. This party works in two step process, firstly, either the constitutions in relations to human rights followed in past have to be considered or not and secondly, how the powers of laws should be exercised. This proves that there exists a system of invalid and inappropriate norms and there is a problem of in consistency in the entire system. Till present there is no single evidence either all laws listed in the constitution of human rights have been enforced or not. Some researchers concluded they have been adopted partially, while other identified that they are just on theoretical basis. Such regulations which are inconsistent or unreasonable in relation to the provision of constitution, are left untouched with the belief that some special committee will solve the issue or when there is a need to solve those problems. This shows citizens are given very minor rights in relation to legislations. A research identified that there are three main things in PRC constitution which requires further improvement and this will be possible thorough effective review methods and techniques. There is no single committee who is responsible for the control of standing mechanism in relation to constitutions who should be responsible for the review of all administrative and legislative instruments. This is subjected to the inefficiency of government officials and mainly uncompromising members of CCP. Taking into consideration all policies imposed on civil liberties, there still exist administrative controls on social media such as internet, television etc. due to this legislation strong criticisms are made by many non-government organizations and is presently a serious matter in the country. (Kellogg Thomas E, 2002). So in this state media sponsorship is done through a combination of legal restrictions and researches. There is bureaucracy in relation to monitoring of all news contents, even laws are enforced on financial incentives. If massive state human or financial resources are used in media, then Chinese government gets worried that their states power or secrets will be easily available to everyone. In order to avoid these practices critical actions are taken against such companies under the constitution laid by CCP. Enforcement of such rules have created negative impact on citizens i.e. they don’t have freedom to speak and share their concepts with the higher authority neither through laws and nor through media. Citizens are not provided constitutional rights. In accordance with the past practices of NPC, they have never taken any actions against the amendment, review or reputation of administrative and legislative practices. There has always been a sense of unconstitutionality or inconsistencies in their system. So taking into account all this information it can be concluded that Chinese judges are nothing but just gatekeepers of justice and have contributed very limited or no efforts on identifying the process of how justice can be conducted with enforcing and increasing the constitutional rights of the citizens. 1.5 Conclusion It have been suggested by most of the researches that the PRC constitution which is main law enforced in relation to human rights, is little in practice, despite of the provisions elected to it. In China constitution related to human rights is taken just in an ideological sense. It is hardly in practice. It is used as guiding principles in relation to legislation; there is no implementation of it. It have been noted that around 40 provisions in constitution are just a draft of phrases, it requires the need of adding more laws and regulations. This shows that constitution in relation to human rights is partially complete. It requires a legal effect in it. This draft of constitution reveals that NPC is not performing in accordance with the regulations of PRC Constitution. This means citizens of the state are not given rights to lodge their legitimate claims in the court, which are against the unconstitutional government practices. Many constitutional norms have not been translated into legislation by NPC, mainly those that are very sensitive in relation to law and politics and may create many challenges to CCP. Some constitutions which are converted are not enforced properly due to the lack of NPC while conducting reviews in relation to the administrative or state practices. In spite, of these drawbacks NPC enjoys a respectable position in determining the method, outcome and timing of a review. Therefore analysis of this paper indicates that the importance and enforcement of constitutionalizing human rights is very rare in the state of China and is followed partially. Citizens are not given their full rights to adhere to the courts. All constitutional rights are just mentioned on paper and are unused by the citizens (Jiang Shigang, 2003). This situation can be controlled only if all provisions are followed in align with the political regime. Through this analysis it has been proved that PRC Constitution has no legal significance in the enforcement of constitutions related to human rights. It is just a form of principles of ideology. Therefore necessary implications are required in Chinese law and political system in order to create importance of constitutional reforms of human rights. The whole constitution in China is formed just to consolidate congress supremacy in order to create a support for CCP rather than assisting country law in governance. It will be successful only if democratic centralism is promoted in state guiding principles. Government and leaders should deliver every message with consent of people. So, in order to maintain constitutional and judicial reforms, judiciary of China will have to find all flaws in the provisions and they should be revised and followed strictly by the judiciary rather than other institutions who work for their own benefits. References Abbott,K.W. (2000). “Hard and Soft Law in International Governance,” Journal of European Public Policy, 8: 345–370. Dong, Zhenang. (2000). “New explorations of people’s congress supervisory methods” (2nd eds). Twenty Years of People’s Congress Development and Reform: 265 – 296. Hand, Keith J. (2006). “Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People’s Republic of China.” Columbia Journal of Transnational Law, 45: 1-250 Jiang, Shigang. (2003). “Misleading Discourse of Constitutional Adjudication? - Discursive Dilemma of Constitutional Adjudication and Constitutional Dilemma of Transformative State.” Journal of Chinese Social Science, 2: 12-55 Kellogg, Thomas E. 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