China Constitution Review: Internal/External Factors & Political Dynamics - Essay Sample

Introduction

The constitution of the Popular Republic of China has been undergoing the review process because of the political and economic changes. The Chinese constitution is one of the most revised in the world since the periodical review has taken place four times so far in 1988, 1993, 1999 and 2004 since it was adopted in 1982 (Jianfu, 2004). It is not correct to say that the review process is as a result of the political dynamics since there are other internal and external factors affecting efficiency. Many argue that the latest amendment of the constitution raised fundamental issues that the next review is yet to solve. The essay discusses why constitutional and judicial review will be established in the PRC in the short-term.

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Constitutional and Judicial Review Process

Although the latest review tried to solve significant problems in the PRC, there are some significant issues the constitution lacks, making it difficult for courts to interpret concepts. The first aspect of constitutional and judicial review in the short-term is making developments toward age and human rights (Jianfu, 2004). Although there have been many debates involving aspects of human rights, the Chinese constitution rarely uses the terms, instead, it uses citizen's rights. It means that the constitution rejects aspects of human rights since there is no universality regarding the nature of human rights. Citizens may be different based on social and class backgrounds. The term was first used on June 4th Tiananmen Square incident in 1989 after issuing a white paper named human rights in China.

Perhaps, the declaration shows that the PRC is coming to terms to understand and implement human rights by incorporating it in the constitution. Inclusion of the term human rights in the constitution means that the constitution will stop relying on Asian or Chinese perception of human rights. It means that the country is slowly moving away from the Asian or Chinese concept of human rights (Jianfu, 2004). Secondly, the declaration of human rights means that the country is ready to incorporate human rights in the constitution and interpreted in Chapter Two that does not contain all elements of human rights. Elements to include in the section include the right to strike, which was abolished in the 1982 constitutional review. Finally, the debate and declaration about human rights illustrate that the country is ready to incorporate the law that makes all people equal, providing equal opportunities to all and all people will enjoy equal rights regardless of their social class or status in society (Cook, 2016). In this regard, readiness to include the concept of incorporating human rights into the constitution suggests that the country will establish a constitutional review in the short-term.

PRC adopts the socialism approach to governance. However, there is a significant inconsistency regarding public ownership. As a result, the judicial process finds it difficult to deal with private property issues with the availability of the socialist constitution. There is an attempt to amend the constitution to solve the issue of private property by ensuring the constitution has laws that protect individual property. The current constitution defines an individual property or economy as an equivalent of a socialist public economy or resources (Jianfu, 2004). Although the state laws protect the interests of its citizens, there is no clear law that helps to understand how individuals can hold property without interference from the government. The only property the constitution allows owning individually and legally including income, houses, and savings. The robust economic development in China necessitates the need to pass laws that protect the non-state economy.

Because of the established clear meaning of individual and public economy, and the fact that the private sector continues to flourish in the Chinese economy, it is crucial to develop new laws that protect such developments. The constitution has to incorporate a non-public economy chapter to the current constitution to protect the interests of private entities (Jianfu, 2004). Although the term seems ambiguous, the constitution should define it well and include various elements that support the growth of the private sector. By including the phrase in the constitution, the private sector will enjoy the same constitutional rights as their public counterparts. Therefore, these developments illustrate that the country is ready for a constitutional and judicial review in the short-term.

The other aspect to believe that the PRC will engage in a constitutional and judicial review is the concept of the state of emergency. The original constitution of China gave the president powers to declare a state of emergency throughout the country or in some provinces or municipalities (Jianfu, 2004). The law was ambiguous since it did not spell out circumstances under which to apply martial law and this leads to the application of martial law in circumstances, such as social turmoil or in cases where there is a serious disturbance. In simple, terms, it could be applied in circumstances where there is a need to restore peace and order and property.

Many experts perceive that the current definition of martial law makes it ambiguous and perceive it as an immediate application of military-style leadership on citizens. The unrest may not cause any violence or damage to property and this does not require the involvement of the army. As the current constitution standards, the power to declare a state of emergency is the same as the power of martial law. While the law tries to restrict the application of these powers in some situations like floods, it shows that the government is willing to apply civilian-options to stop unrest before applying the military style of leadership in cases where their services are not needed (Cui, Cheng& Wiesner, 2018). For example, the president can use civilian police to restore normalcy. In this regard, the establishment of martial law in 1996 requires amendment of the constitution by providing procedures under which the president can declare a state of emergency, and it should provide details regarding a state of emergency. The Chinese constitution has been evolving and it is expected to continue developing to accommodate changes taking place in the political and judicial contexts, considering the fact that the last amendment took place in 2004.

Additionally, issues associated with the constitutional court create a basis to expect a change in the short-term. However, after viewing the Chinese history, an individual may wonder if the constitutional review is really wanted, considering the political and economic changes. The current constitution hinders the independence of the judiciary to interpret it in a way that promotes equality in society (Jianfu, 2004). Various government agencies interfere with the judiciary, hindering its effective definition and interpretation so that it becomes supreme living law although it was drafted many years ago. The constitution should maintain its supreme powers and maintain the highest legal norms above any government organs regarding the interpretation and implementation of the law (Potter, 2013). As it stands at the moment, the judiciary is not the source of supreme law because of ambiguities considered in the constitution and interference from other sectors.

Additionally, the Chinese judiciary is subject to a debate regarding its independence in the legal decision-making process. There are internal and external controls affecting decisions of the judiciary since there are mechanisms within the judiciary that affect the individual decisions of judges. In most cases in China, a panel of judges decides. Although there has been tremendous progress to promote the independence of the judges and the judiciary, the court adjudicative committee has the authority to review and approve or disapprove decisions of individual judges and the panels (Cui et al., 2018). However, this happens in complex cases that have a significant impact in the future and other cases. Similarly, judges in lower courts have the mandate to seek advisory opinions from their seniors and upper courts regarding important matters. These and other issues indicate that the constitution of PRC is not the supreme legal entity since some influential individuals and organizations influence and determine the outcome of court decisions.

Some legal reformers in China are opposing these practices and they are advocating for independence in the judicial process. Judges and magistrates should be independent and follow the provisions of the law instead of other influencing factors. It means that powerful individuals have their way in the legal process (Jianfu, 2004). According to reformers, and human rights activities, influencing court decisions undermines the right to appeal decisions. Although there are some disagreements between experts in China, there is an ongoing debate regarding the promotion of judicial independence and this is an indication that the PRC is likely to have a constitutional and judicial review in the short-term.

China can borrow important concepts of the judicial review process as an innovation that focuses on improving current systems and procedures and decisions in various cases. In the case Marbury v. Madison, that involved a US Supreme Court, it was established that the judicial review process would improve decisions by empowering the courts and empowering federal courts to declare some acts of the executive and legislative arms of the government unconstitutional (Landmark cases of the US Supreme Court, 2018). The unanimous decisions made robust changes in the judiciary and the influence of government agencies on the decisions of judges. Many countries have borrowed judicial review ideas from this landmark case. Because of the transformation taking place in other parts of the world, China has adopted these ideas and there is an ongoing debate about empowering the judicial process to interpret the constitution and declare some internal and external interference unconstitutional. In this way, PRC will improve its governance systems and promote equality. However, political and economic changes would affect governance systems and structure but the review process would handle evolving challenges.

Judicial Independence

The Chinese judiciary is subject to internal and external controls. While others think that controlling independence of China is a milestone towards promoting justice, many scholars and experts argue that there is no justice to all people and institutions when there is interference from internal external forces. In the Chinese political and judicial history, there has been no personal independence. It means that various sectors and entities control the outcome of decisions. The concept is not mentioned anywhere in the Chinese constitution (Potter, 2013). In this regard, individuals with selfish interests can interfere with justice decisions; hence, the need to promote personal independence.

The constitution should uphold personal independence in courts so that judges can make independent decisions without interference from internal and external forces. The government should review the constitution and the judicial process to include the clauses so that judges and magistrates can make independent decisions and declare some acts of individuals and influential organizations unlawful because they interfere with impartial decisions (Hornby, 2017). For example, local governments are the most influential in judicial decisions. In the case of administrative lawsuits, local governments influence the decisions so that they do not take liability. Because they control local...