Public Interest Litigation in China: Rule of Law, Strategies, and Differences with India, Slides of Commercial Law

Download Public Interest Litigation in China: Rule of Law, Strategies, and Differences with India and more Slides Commercial Law in PDF only on Docsity! Public Interest Litigation in China Docsity.com Contents • A. Overview of rule of law in China • B. Evaluation of public interest law movement • C. Strategies Of Public Interest Lawyers • D.Difference in PIL between China and India Docsity.com A. Overview of rule of law in China • 2. Two pictures of rule of law in China: law in book and law in action (1) rule of law in constitution • The Chinese Constitution in 1982 (with four amendments) envisions a country under rule of law. • Article 5. The People‘s Republic of China practices ruling the country in accordance with the law and building a socialist country of law. • Article 33 " …….. The State respects and preserves human rights." • Article 126. The people's courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals. Docsity.com A. Overview of rule of law in China • (2) rule of law in reality • a. Chinese Constitution is hardly applicable in court. • Authorities take a very negative attitude towards the call from the law circles on the judicialization of the Constitution. • b. Most of civil and political rights are not enforcable in court. The rights of person and property rights are the main focus. . c.There is no effective mechanism ensuring the unity of law.SCNPC actually almost never exercised its power. The power of judicial review of court is very limited. • d.The court is too weak to resist interference from the government or the party. Docsity.com A. Overview of rule of law in China • 3. The paradox in the building of rule of law • The process of establishing rule of law aiming at restricting the party state is initiated and led by the party state. The party state takes an instrumentalist approach of law. The party is very careful not to let the law become a sharp weapon against itself. It selectively practises rule of law in different areas: • a.There are areas that completely out of control of law at all. Detentions in form of “two designateds” of Party members. Temporary detention or house arrest of petitioners and dissidents. • b.There are areas with very limited control of law. press, internet, NGO, demonstration. No effective guarantee • c.There are areas with enforceable laws. relatively normal area of rule of law. Civil law, criminal law, administrative laws. Docsity.com B. Evaluation of public interest law movement • 2. Active Areas in public interest litigation • (1)Consumer rights protection • (2)Anti-discrimination (including woman’s rights) • (3) The right to education • (4) Land and property rights protection • (5) Environmental protection • (6) The right to government information • (7) Make government agencies accountable in law enforcement Docsity.com B. Evaluation of public interest law movement • 3. The major difference between West and China on public interest litigation • In West,public interest litigation to a large extent is based on the capacity of courts to make law through interpreting and invalidating existing laws and to order public institutions to enforce laws. • The courts are playing a much less important role in public interest litigation in China. Chinese courts explicitly do not have the authority to invalidate or interpret laws, and individual decisions of courts do not have official precedential value. Furthermore, courts have limited remedial powers ; After a judgment is rendered, even the enforcement is often very difficult. Docsity.com B. Evaluation of public interest law movement • 4. Main achievements: • 1. Successful cases: succeed in court and succeed out of court; • There are lots of Cases that have brought out positive influence and catalyzed legal reform and social transformation in some respects.(anti-discrimination) • The concept of public interest litigation is partly accepted by government agencies, especially in the area of environmental protection. • 2. Welcomed by media and general public, and often can produce great impact. • 3. More and more lawyers and ordinary citizens begin use Public interest litigation as a tool to advocate rule of law and social justice. • • Docsity.com C. Strategies OF PI Lawyers • 1. Beliefs shared by most public interest law activists. • Most activists identify public interest litigation as a legal movement rather than a political one. This self-identification can be demonstrated in their insistence on the use of legal tools no matter how they are ineffective in practice. The persistence in legal actions in part can be attributed to the increasing belief of rule of law among the legal profession in China. • In a large country like China with a long tradition in which most people, from ordinary citizens to the leadership, lack of respect for law, this moderate and steady approach is one of the most effective ways to change the mind of people and the society. • By insistence on the use of legal tools which are often too dull to use, the activists also believe that their unremitting actions would eventually bring a systemic improvement of the legal mechanism. Docsity.com C. Strategies OF PI Lawyers • 2. Mild advocacy approach • The mild advocacy approach adopted by activists partly due to their beliefs on gradual transformation, partly due to the realistic tactics in current political environment. • Most legal activists usually carefully choose cases that are not too politically sensitive but with the potential to have widespread social impact. It is also possible for the media which on the whole are controlled by the government to cover these legal actions. • Most legal aid practitioners would like to adopt a moderate model of advocacy by working within existing legal channels, carefully citing the current Constitution, laws and official rhetoric, and taking advantage of the issues that it is possible for the media to report. Docsity.com C. Strategies OF PI Lawyers • In contrast, some radical activists who have directly challenged fundamental state or Party interests by focusing on particularly sensitive political issues such as Falun Gong, adopting radical tactics or becoming too much involved in group protests or local unrest have been less successful in promoting legal reform. • These radical actions along with the following suppressions by the government have received significant media attention in western countries. But they are almost invisible at all for the general public in China Docsity.com