Legal Transplants - Essay Example

? Legal Transplant – Whether China has Successfully Transplanted the International Human Rights Treaties into Legal System? Introduction To China has espoused more than twenty international human rights accords through the process of legal transplant, which is effective as China has the required atmosphere for adaptation. Both the market economy and civil society have created demands for foreign laws that fit well with China’s customary civil law and other customs1. Legal transplant signifies the borrowing of a law or a rule by one nation from another. As per Watson, borrowing or transplantation is the most fruitful source of legal development for the borrowing nation2. As per J.W.Powell, the phrase “acculturation” refers to the psychological transformations encouraged by cross-cultural restrictions3. This research study explains in detail what a legal transplant is, how a nation derives benefit from it, whether China is successful in transplanting international human rights treaties provisions into its domestic law and the atmosphere under which a well-suited human rights law can be regarded as a successful means of treaty execution. It also critically analyses the chances for real human rights provisions espousal by China, in particular through adoption of the International Covenant on Civil and Political Rights (ICCPR). What is Legal Transplant and how does China benefit? The phrase “legal transplant” was first conceived by W.A.J Alan Watson, a Scottish researcher, to signify the borrowing of a law or a rule by one nation from another and the concept is today part of the broader process of legal acculturation or diffusion of law. As per J.W.Powell, the phrase “acculturation” refers to the psychological transformations encouraged by cross-cultural restrictions. In the current climate of globalisation, research studies on the acculturation or legal transplant of law are notably a new province of research4. In developing a nation’s legal system, there is nothing wrong with global borrowing. The need and the usefulness of the recipient nation have obviously made such borrowing of foreign legal concepts a reality. Thus, law as an instrument for social engineering may be transferred from one legal system to the other legal system5. The establishment of a market economy and the introduction of an ‘open door’ policy in China have necessitated the need for internationalising Chinese law and there is an increased stress on legal assimilation or transplant, which is to be based on market-associated legal mechanisms. There is a fear in some corners that legal transplantation may end up westernising Chinese law, but to be an economic super power, there is a necessity for China to modernise its law. Much Chinese literature has stressed the need for harmonising or assimilating China’s law with that of international conventions and practices and transplanting into China western laws on market-associated mechanisms. The main objectives of economic and structural reforms and the freedom of productive forces are the main criteria for internationalisation of Chinese law6. Legal transfusions have been carried out around the globe. The rest of Asia has benefitted from the import of laws from China and many South–East Asian nations have imported Islamic laws into their legal systems. There exists corroborative evidence that East African nations have benefited from the transplantation of Indian legal rules. The latest legal developments in Mozambique and Namibia have an influence from South African laws. And today, the close relationship between Africa and China could trigger a new transmission of legal models to support business transactions7. Laws that are consistent with the pre-existing social order or with the local atmosphere are more probable to be successfully transplanted and implemented. A nation is likely to derive economic advantage from a successful legal transplant, but this does not depend the legal rule’s country of origin but whether it is the most apt to resolve a given legal issue. Such legal transplants are not only acknowledged by the legal system but also by the people of such a nation8. For example, a law imposing monogamy in Chinese families would likely to fail as Chinese society acknowledges the legality of many “little wives”. Thus, the law cannot be transfused unless the nation which is receiving it is ready to espouse it9. Professor Jianfu Chen, in a study of legal growth in China in the last 100 years, argued that Chinese law is a mixture of internationalisation and Westernisation with little or no input from local sources. Both Macau and Hong Kong have been important routes for the introduction of foreign laws and rules10. However, Professor Mancuso investigated why it has been more arduous to transplant Portuguese law to Macau than the common law to Hong Kong. Following China’s accession to the World Trade Organisation (WTO), the country has been under tremendous pressure to absorb international law, both customary and treaty-based, international practice and outcomes of international negotiations and China is now absorbing these into its law regime. There have been some basic developments in protection of human rights and the rule of law, both of which were officially acknowledged by 1999 and in 2004 amendments to the 1982 Constitution11. There were also radical amendments to the Criminal Procedure Law and Criminal Law in 1996–1997 which were mainly aimed at adopting commonly acknowledged international norms on the rule of law and on justice instead of espousing any specific legal customs12. A number of important international human rights have established a general obligation to pay appropriate compensation for infringement of human rights. Some These include the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), and the Convention on the Rights of the Child (CROC). Moreover , international customary law demands that the infringement of any international commitment by an organ of a state or a state amounts to an international tort and any such breach will result in an appropriate obligation to make proper reparations13. To date, China has endorsed more than twenty international human rights treaties. The majority of such laws introduced during the reform phase pertain to human rights, however, a specific human right law is yet to be adopted by China, despite the fact that the Chinese legal scholars have already drafted a human rights law14. Further, China partakes in the global human rights system by drafting new instruments, by submitting reports and becoming involved in various human rights discussions15. When China stood as one of the candidates for the New Human Rights Council, there was a promise from the Chinese government that it would engage in the promotion of international human rights and an assurance that the Government of China would honour human rights universally and extend its full support to the United Nations in playing a significant part in safeguarding human rights in China. This included the “Voluntary Commitments and Pledges” presented to the Council. However, although there is increasing verbal acknowledgement of human rights in China, there remains a wide chasm between China’s expressed obligations in this regard and its implementation of these promises16. China is now a member of the International Human Rights Council, but UN bodies have found that China has not fulfilled its commitments to human right within its borders. Progress against these commitments by China should be reported in the Council’s periodic review system but should also be raised by governments which are involved in bilateral relations with the China17. Reporting by China to international bodies signifies there have been implementations of at least some recommendations. For instance, there is some definite improvement in the collection of data including adhering to the appeal from international treaty bodies for extra data and disintegrated data. However, 5nternational scholars remain sceptical about the precision and completeness of the data submitted by China18. In a communist country like China, the traditional role of law is to fortify the State in contrast to the safeguarding of individual human rights The main objective of the People’s Republic of China (PRC) is to strengthen one-party rule and promote economic growth, however it has restricted government authority and now permits individual citizens to claim their rights in court. However , under one-party rule, it remains as an unresolved question as to how China can benefit from legal transplant of international human rights law when its ordinary citizen is still not empowered to approach a court to redress his human rights issues19. Thus, legal transplant of international human rights law may be one way to help the growth of human rights in China Where a dedicated human rights law has yet to be developed, despite the many laws introduced during the reform phase which extend, either explicitly or implicitly, human rights capacity either by limiting administrative systems or criminal systems or elucidating the privileges of Chinese citizens20. To have a well-structured human rights law, there is a proposal to adopt legal transplant of the “International Covenant on Economic, Social and Cultural Rights (ICESCR)” and the “International Covenant on Civil and Political Rights (ICCPR)” into Chinese law. It is to be observed that the PRC has signed the ICCPR, but it is yet to ratify the same. Further, the legal transplant of international human rights into Chinese law was introduced into the Constitution of China by the 2004 constitutional amendment. Legal transplant of such international human rights law will make sure that basic rights are recognised in the Chinese Constitution21. Critics argue that China is often blamed for violations of rule of law to enable economic development. To engage in the globalisation process without any interruption so as to attract foreign technology and foreign investment, China is now realising that there should be an enforceable, stable and predictable contractual, human rights and commercial law which China is now borrowing through legal transplant from international laws. As regards human rights, although China is still hesitant to adhere to the Western conception of rule of law or to be a government respecting the law, it is already espousing rule by law and in its own style and has advanced the enforceability, stability and predictability of human rights considerably compared to a few decades ago. This has again substantiated that economic development has pressurised the Chinese government to espouse international human rights laws thereby disowning its human rights abuses of the earlier iron-curtain communist regime. Has China succeeded in its efforts to transplant international human rights provisions into its human rights law? China has prepared a draft Human Rights Law (HRL) by borrowing provisions from international human rights treaties. Chapter seven deals with substantive political and civil rights and Chapter eight deals with cultural, social and economic rights of Chinese citizens. Chapter seven chiefly adhere to the promises that are spelt out in the ICCPR but also includes major changes and omissions so as to tailor it to suit the domestic political and legal systems22. According to the Dui Hua Foundations, in 2007 alone China executed 5000 to 6000 of its citizens for criminal offences, and International Human Rights Organisations agree that there are about 5000 executions per annum, although a reduction has been reported since the Supreme People’s Court of China commenced its review of death sentences in 200723. The draft HRL does not contain any provision relating to awarding death penalty as per ICCPR for the gravest crimes. According to the Human Rights Committee of China, the interpretation of most grave crimes in a limited manner would recognise the award of the death penalty to be in consonance with Article 6(2) of ICCPR only as an extraordinary measure. However, China agrees not to levy the death penalty for offenses which are economic, property or political in nature or any offenses where there is no use of force24. It is not possible to confirm whether the courts in China will adopt the provisions of the international human rights treaties25. Some Chinese scholars are of the view that international human rights treaties should not be automatically translated into Chinese law and instead would need legislative ad-hoc change.26 It is pertinent to refer to the first ever White Paper released in 1991 on Human Rights in China, which stated that: … no nation in its zeal to understand and safeguard human rights can take a course that is different from its history and its political, economic and cultural background. Thus, a human rights system to be more effective should be approved and safeguarded by each sovereign government through is local legislation27. Article 142 (2) of common doctrines of “Civil Law of the PRC (The People’s Republic of China )” reads as follows: If the People’s Republic of China has acceded or concluded any international treaty and if such treaty contains any provisions, which is diverse from those of civil laws of PRC, then the provisions of the international treaty will be applicable unless or otherwise if reluctance by PRC to implement such provisions of international treaties28. Chinese legal scholars are of the view that automatic transplant of international human rights treaties into Chinese’s human rights law cannot bestow more privileges to citizens since China is perusing a socialist legal system29. It is to be noted that China has successfully transplanted from ICCPR provisions for the proscription of scientific or medical experimentation and the proscription of cruel, torture, degrading or inhumane punishment or treatment. Article 59(3) of the draft HRL(Human Rights Law) prohibits to extort a confession by force or torture and however, the PRC has been frequently condemned for not incorporating into its Criminal Procedure Law, an unequivocal bar to obtain confession statements under torture and to produce the same as evidence before the courts30. It is to be noted that confession statements are still obtained by coercion in China despite the Supreme People’s Court having given clear orders that any statements of confessions from defendants or victims or testimonies of witnesses would be unacceptable if there is clear corroboration that they have been obtained by unlawful means or through torture31. Further, the draft HRL of China (Article 61(3)), which contains the provisions relating to guaranteeing of the right to security and liberty, is not in accordance with the ICCPR provisions (Article 9(3)). The onus on the government to bring any citizen detained or arrested on a criminal charge swiftly before any judge has been restricted to a right to demand prompt cross-examination. Thus, legal transplant in the above areas in China is not in consonance with international human rights treaties.32 The Chinese Constitution’s Articles 67(14) and 81 specifies that the “Standing Committee of the National People’s Congress “ shall ratify an international treaty after re-evaluating the same at its session and its implementation will take effect only after the president’s ratification of the same on the recommendation from Standing Committee”.33 In the aftermath of admission of China to the WTO at the end of 1990s, the major trading powers of the world found that WTO rules may not be likely to be applied by the Chinese courts directly and hence, legal adaption of WTO rules is hampered by the Chinese internal political climate. Thus, some research studies of the international relevance of international treaties in China created a chain of debates that not only demonstrated the limitation of efficacy of international trade law within the Chinese legal system, but also attempted to minimise the domestic efficacy of international law34 . In general legal practice in China, lawyers are allowed to meet their clients but it would be arduous to gain actual access to them. Further, the communication between the accused and his lawyer is not privileged. It has been always maintained that forgery or damage to evidence by a defence lawyer is an offense in itself. All these imply that legal transplant of international human rights provision still has a long way to go for its implementation in China35. The obligation of the Chinese government to honour the freedom of parents to seek the religious education of their children has been amended so as to give such right only to parents of minority communities and not to all citizens. Thus, China falls short of the above ICCPR provisions as regards legal transplant in this respect36. The draft HRL contains restrictions on “freedom to form trade unions and freedom of assembly”, as lalthough the HRL indirectly states that anyone is authorised to enjoy freedom of association, the PRC declared a corollary regarding the privilege under the ICESCR to establish trade unions. The draft HRL therefore does not offer the privilege of trade unions to form national federations, the privilege to function without any interruption by trade unions or the privilege to strike. Thus, legal transplant in China as regards freedom of assembly and freedom to establish trade unions falls short of ICESCR provisions37. The draft HRL does not state that elections to be conducted at China should be genuine. It is to be noted that even in a single-party system like China, a genuine election is possible where voters have the freedom to elect between many candidates of a single party. The decision of the drafters of the HRL not to include the necessity for “genuine elections” signifies that they presume that election system does not even adhere to these minimum needs. This also signifies a clear departure from the legal transplant of international human rights provisions into Chinese’s laws.38 Since China is perusing a socialist legal system, it would be difficult to borrow the whole gamut of international human right laws into its laws as it has to be adjusted as per the needs of its socialist legal system. Nonetheless, no nation in its zeal to understand and safeguard human rights can take a course that is different from its history and its political, economic and cultural background. Thus, to be more effective a human rights system should be approved and safeguarded by each sovereign government through local legislation. For the success of legal transplant of international laws into the Chinese legal system, it should be fine tuned to suit its history , political and cultural background for its successul implementation. The illustrations of the reluctance of Chinese’s courts to espouse the international human rights treaty’s provisions, the fact that an individual cannot approach any court in China for the enforcement of his individual rights, the reality that an accused can be tortured to give a statement which is used against him in the court, the fact that an arrested person on criminal charges in China may not be produced before any court, the reality that it is very difficut for a lawyer to meet his arrested client ,the fact that communication between the lawyer and an accused is not treated as privileged, the reality that the freedom of parents to pursue the religious education of their children is refused except to the minorities, the fact that freedom of assembly and freedom to establish trade unions fall short of ICESCR provisions, the reality that there is no guarantee of genuine elections, all demonstrate that international donors have not taken sufficient account of either the domestic cultural or informal norms or customary law or the basic interests of China’s local laws. Thus, donors should pay more attention to the fact that China is giving more significance to its economic growth to the disadvantage of the political freedom of its citizens. Moreover , for Chinese leaders, right of survival is more significant than all human rights. Chinese leaders also believe that curtailment of human rights results in significant advantages in terms of economic development. Incidents like Tiananmen square, absence of freedom of speech and existence of one-party government are evidence of China’s poor human rights record. However, China wants donor nations to respect China’s sovereignty and expects that donor nations should not interfere in their internal affairs, and any censure of China’s human rights violations is construed as intrusion and interference. It is crucial therefore that the donor nations should not simply “dump” their legal system in China. The better solution would be to combine human rights laws from donor nations with a Chinese blend that emanates from within the government, with an end product incorporating Chinese political, cultural and philosophical customs. Conclusion Analysing whether China has engaged in the total legal transplant of international human rights provisions into its HRL is difficult as the draft HRL is not a verbatim copy of the international human rights accords. The PRC government does not refer the international human rights accords as an instant legal source but rather as a reference point of legislation. This connotes that PRC does not want to imitate the exact treaty provisions in its national human rights law but may prefer to fine-tune the substance of international human rights provisions to suit with the Chinese or local scenarios39. It is necessary to ask what the use of such a legal transplant is when a citizen cannot approach any court to support his individual rights? Also, even where it has adopted international human rights treaties, the Chinese socialist government keeps reserves or rejects many rights?40 Other human rights deficiencies include, as discussed above, included coerced confessions, restriction of the right to be promptly charged or released and lack of client-lawyer privilege. Freedom to assemble and establish trade unions falls short of ICESCR provisions. As argued by Professor Jianfu Chen, Chinese law is a mixture of internationalisation and Westernisation with no or little input from local sources. However , under one-party rule , it remains as an unresolved question as to how China can benefit from legal transplant of international human rights law when an ordinary citizen cannot approach a court to redress his human rights issues. (Ahl, 2010: 362). Al though the PRC has signed the ICCPR, it is yet to ratify the same and it remains unclear whether the courts in China will adopt the provisions of the international human rights treaties41. It is suggested that a radical change within the Chinese political system is needed to introduce the Human Rights Law in tune with international human rights treaties. Legal adoption of international human rights laws in China should be tailored to the needs of the Chinese one-party system with enhanced safeguards for the ordinary citizen within an authoritarian rule-of-law government is the current need.42 If China really wants a total legal transplant of the international human treaty provisions into its HRL, it should endeavour to implement the following: it should fine tune some chosen laws to the prerequisites of the ICCPR; produce a reliable understanding of the Constitution that is unfailing with the ICCPR; introduce a constitutional amendment to include the norms of the ICCPR; and insert a rule in its ordinary statutes or in its Constitution that requires a prior application of the ICCPR. 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