The Centre for Chinese and Comparative Law (RCCL) of the School of Law of City University of Hong Kong organised an marvelous International Conference on “Realisation of Socio-Economic Rights in Emerging Free Markets: Perspectives from China and India”. The Conference will took place in Hong Kong on 29-30 November 2012.My great thanks to the conference organizer, Surya Deva, Associate Professor, School of Law, City University of Hong Kong for a thought provoking program that sought to push the envelop both respecting the institutionalization of social and economic rights norms and the important work of comparative study of China and India.
The conference brought together a group of scholars from China, India and the West, all of whom sought to consider the role of socioeconomic rights developments in China and India. This post includes the Conference Concept Note, Conference Objectives, Program, and a short Biography and abstract of the presentations of the conference participants.
Conference Concept Note:
Conference In the last decade or so, China and India have emerged on the global stage as two emerging (market) economies. Despite some fundamental differences in their political and constitutional structures, China and India share many similar traits, e.g., large population, constitutions with socialist orientation, emerging free markets, economic disparities, and corruption. Nevertheless, legal scholars have not adequately compared and researched on the experiences of China and India, despite the fact that both countries should be able to learn from each other.
This Conference is an attempt to charter this relatively unexplored territory. It seeks to examine the realisation of socio-economic rights in China and India, especially against the background of both countries embracing the free market ideology but without totally abandoning their socialist orientations. This Conference will provide a platform to discuss in a comparative way how these two countries have tried to overcome the challenges in realising the socio-economic rights of their vast population. Such an exchange of views should be useful not only for scholars and policy makers in China and India, but also for anyone interested in other BRICS countries as well: Brazil, Russia and South Africa.
Both China and India stress the importance of socio-economic rights and have in place legal framework for the realisation of such rights. The Constitutions of both China and India accord significant importance to socio-economic rights. Both countries have ratified the ICESCR too. One can also find plethora of laws, regulations and policies in both countries that seeks to implement various socio-economic rights.
_____________
Conference Objectives:
The Conference seeks to explore, among others, the following issues:
examine critically and in a comparative manner the effectiveness of measures – i.e., policies, laws, programmes, etc. – adopted by China and India to realise socio-economic rights;
- investigate how constitutions with socialist orientation have adjusted to transition to a free market economy in both India and China;
- assess the evolving international human rights jurisprudence in this area and the reports submitted by China and India to the Committee on Economic, Social and Cultural Rights;
- explore the realisation of certain rights (e.g., social security, food, health, education, just and favourable conditions of work) as a case study and in comparative settings of China and India;
- review the role of civil society and foreign development aid in the implementation of socio- rights in India and China;
- learn more about the extent to which corruption poses a challenge in realising socio- economic rights and how China and India are trying to overcome this challenge;
- consider the role of courts (including of public interest litigation) in the realisation of socio- economic rights.
Leading scholars who have researched and published in the area of socio-economic rights (especially those with expertise on China and/or India, or international human rights and development) will be presenting papers at this Conference.
(Pix (c) Larry Catá Backer 2012))
____________
Program:
International Conference
on
Realisation of Socio-Economic Rights in Emerging Free Markets: Perspectives from China and India
on
Realisation of Socio-Economic Rights in Emerging Free Markets: Perspectives from China and India
Dates: 29-30 November 2012
Venue: Connie Fan Multi-media Conference Room, 4/F Cheng Yick-chi Building, City
Venue: Connie Fan Multi-media Conference Room, 4/F Cheng Yick-chi Building, City
University of Hong Kong (CityU)
PROGRAMME
Thursday, 29 November 2012
9:00am-9:30am – Registration, Connie Fan Multi-media Conference room (MMR), CityU
9:30am-10:00am – INAUGURAL SESSION
Welcoming Remarks: Professor Wang Guiguo, Dean, School of Law, City University of HongKong, Hong Kong10:00am-10:30am – Tea (MMR)
Inaugural Speech: Professor Arthur Ellis, Provost, City University of Hong Kong, Hong Kong
Vote of Thanks: Dr Surya Deva, Associate Professor, School of Law, City University of Hong Kong, Hong Kong
Group Photo
10:30am-12:30pm – SESSION I: Socio-Economic Rights – International and Comparative Context
Chair: Dr Chen Lei, Assistant Professor, School of Law, City University of Hong Kong
1) Professor Markus Kotzur, Professor of European Law and Public International Law, University of Hamburg, GermanySocio-Economic Rights at the International Plane: A European Perspective
12:30pm-1:45pm – Lunch by invitation (Staff Lounge, City Top, 9/F Amenities Building, CityU)
- 2) Dr David Bilchitz, Associate Professor, University of Johannesburg; Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), South Africa
Giving Socio-Economic Rights Teeth: Lessons from the South African Experience
- 3) Professor Marcelo Figueiredo, Professor of Constitutional Law, Pontifical Catholic University of São Paulo, São Paulo, Brazil
TBC
- 4) ProfessorPaulAnthonyCammack,Professor,DepartmentofAsianandInternationalStudies, City University of Hong Kong, Hong Kong
Socio-Economic Rights in the World Market: China, India, and the Gang of Five
Questions/Comments
1:45pm-3:30pm – SESSION II: Governance Challenges – Privatisation, Corruption and Sustainability
Chair: Professor Michael Davis, Professor, Faculty of Law, University of Hong Kong
3:30pm-4:00pm – Tea (MMR)
- 1) Professor Larry Catá Backer, W Richard and Mary Eshelman Faculty Scholar & Professor of
Law, School of Law, Pennsylvania State University
Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatisation and the Role of Companies in China and India
- 2) ProfessorCRajKumar,ProfessorandViceChancellor,O.P.JindalGlobalUniversity;Dean, Jindal Global Law School, India
Comparative Perspectives on Corruption and its Impact on Implementing Economic, Social and Cultural Rights in India and China
- 3) Professor Domenico Amirante, Department of Political Science – Jean Monnet, Naples 2 University, Italy
The Right to Environment in Emerging Economies: A Comparative Approach to India and China
Questions/Comments
4:00pm-5:45pm – SESSION III: Role of Courts and Public Interest Litigation Chair: Professor Fu Hualing, Professor, Faculty of Law, University of Hong Kong
1) Professor Randall Peerenboom, Professor, La Trobe University; Associate Fellow, Oxford University Centre for Socio-Legal Studies, UK6:30pm-8:30pm – Welcome Dinner hosted by the City University Law School (by invitation)
The Role of Courts in Enforcing Socio-Economic Rights in China and India
2) Professor Parmanand Singh, Visiting Professor of Law, O.P. Jindal Global University; Formerly Professor and Dean, Faculty of Law, University of Delhi, India
Enforcing Socio-Economic Rights through Public Interest Litigation: An Overview of the Indian Experience
3) Dr Leïla Choukroune, Senior Lecturer in International Economic Law, Faculty of Law, Maastricht University, The Netherlands
The Paradox of Justiciability: Labour PIL in China and India
Questions/Comments
Friday, 30 November 2011
9:00am-10:30am – SESSION IV: Constitutional Responses to Poverty and Economic Disparities Chair: TBC
10:30am-10:45am – Tea (MMR)
- 1) Dr Arun Kumar Thiruvengadam, Assistant Professor, Faculty of Law, National University of Singapore, Singapore
Exploring the Relationship between Constitutionalism and Impoverishment: Comparing the Experiences of India and China
- 2) Ms Karen Kong, Assistant Professor, Faculty of Law, University of Hong Kong
Social Justice and Social Rights in Hong Kong: Recent Judicial Review Developments and
Proposal for Legislative Change
- 3) Professor R Sudarshan, Dean, Jindal School of Government and Public Policy, India TBC
Questions/Comments
10:45am-12:45pm – SESSION V: Right to Health and Food
Chair: Dr Ding Chunyan, Assistant Professor, School of Law, City University of Hong Kong
12:45pm-2:00pm –Lunch by invitation (Shing Hin, 8/F (or Staff Lounge, 9/F), Amenities Building, CityU)
- 1) Dr Uday Shankar, Assistant Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, India
Vindicated Market and Vulnerable Health Care: Human Rights Perspective
- 2) Dr Frank He, Associate Professor, School of Law, City University of Hong Kong, Hong Kong Losing by ‘Winning’: Medical Malpractice Litigation in China
- 3) Dr Prabhash Ranjan, Associate Professor, National Law University, Jodhpur, India
Bilateral Investment Treaties (BITs) and the Right to Health: Comparative Study of the Indian
and Chinese BITs
- 4) Professor Mo Jihong, Professor of Law Institute of Chinese Academy of Social Sciences; Member of Executive Committee of International Association of Constitutional Law, China
Right to Food and Safety of Food in China
Questions/Comments
2:00pm-3:15pm – SESSION VI: Right to Education and the Status of Women
Chair: Dr Mark Kielsgard, Assistant Professor, School of Law, City University of Hong Kong
3:15pm-3:45pm – Tea (MMR)
- 1) Professor Mahendra P Singh, Chairperson, Delhi Judicial Academy, India and Dr Liu Jianlong, Lecturer for Constitutional and Administrative Law, Faculty of Law, China Youth University for Political Sciences, China
Right to Education in India and China
- 2) Dr Surya Deva, Associate Professor, School of Law, City University of Hong Kong, Hong Kong
‘No Child Policy’ vs. ‘One-Child Policy’ in Emerging Free Markets: What did the Difference Mean for Women in India and China?
Questions/Comments
3:45pm-5:45pm – SESSION VII: Labour Rights, Social Security and Welfare Chair: Mr William Nee, China Labour Bulletin, Hong Kong
1) ProfessorShiMeixia,ProfessorofLabourLaw,LabourRelationsandSocialSecurity,School of Economics and Management, Beijing Jiaotong University, China5:45pm-5:50pm: Concluding Remarks
How to Protect the Dispatched Employees in Chinese Situation
2) Dr Lin Feng, Associate Professor, School of Law, City University of Hong Kong, Hong Kong Judicial Protection of Labour Rights in China and Its Constitutionality
3) Dr Zhu Guobin, Associate Professor, School of Law, City University of Hong Kong, Hong Kong
Right to Social Security: International Norms and Standards and Chinese Practice
4) Professor Li Jianfei, Professor, Renmin University of China, China China’s Legislation and Reform of Social Welfare
Questions/Comments
____________
(Pix (c) Larry Catá Backer 2012))
Professor Markus Kotzur, Professor of European Law and Public International Law, University of Hamburg, Germany
Socio-Economic Rights at the International Plane: A European Perspective: Socio-Economic Rights are gaining more and more importance in the globalizing world. For a long time, globalization has been treated as a self-regulating process, creating win-win situations for all participating states and their peoples rather automatically. However, since the nation state’s power in this new world order is eroding, themes, originally stemming from the domain réservé of the states, play a more important role in international relations. This includes questions of social policy and socio-economic rights, in particular the creation of minimum standards and the inclusion of non-state actors in the realization thereof. In the supranational order of the European Union and in the framework of the Council of Europe such questions have been discussed early by the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ) alike. However, this European discussion has largely been based on classical “first generation” civil rights. The presentation of Professor Kotzur is aimed at exploring the developments in the field of the protection of socio-economic rights in Europe including decisions which shift their focus to second and third generation human rights and their implementation. This study shall in a second step serve as a background for discussing similar developments at the global plane.
Dr David Bilchitz, Associate Professor, University of Johannesburg; Director of the South
African Institute for Advanced Constitutional, Public, Human Rights and International Law
(SAIFAC), South Africa
Giving Socio-Economic Rights Teeth: Lessons from the South African Experience: Perhaps the key challenge facing socio-economic rights is to move beyond their being abstract normative commitments that promise a lot to the actual delivery of concrete goods for vulnerable individuals. In its transition to democracy, South Africa included justiciable socio-economic rights in its bill of rights to address the plight of the poor in society. Very soon, the Constitutional Court was faced with the central question of how to interpret these rights as well as the kinds of remedies it should give. An analysis of the South African case law that has developed surrounding these rights can provide an important understanding of some of the possibilities and pitfalls courts can face when giving effect to these rights. It thus may be of relevance when considering the development of socio-economic rights jurisprudence in China and India which also face large segments of the population who are in poverty.Three important questions will be considered in this paper. The first question relates to the content of socio-economic rights provisions. The South African Constitutional Court has developed an approach to these rights that focuses on whether the government has developed a programme that is reasonable to address a specific right such as the right to adequate housing (for instance). This ‘reasonableness approach’ ultimately is programmatic in nature and places great emphasis on the notion of ‘reasonableness’. I shall argue, on the one hand, that the programmatic focus of the court is an important development and offers a means to address certain difficulties with these rights when considered purely as individual entitlements. On the other hand, the notion of reasonableness cannot bear the weight placed upon it: ultimately, the court has largely failed to articulate an approach to these rights that provides prospective litigants with an understanding of their content. The court has often been more successful in its approach to specific rights such as the right to housing where it departs from the abstract doctrine and provides more determinate content to these rights.
The second question often raised in relation to these rights relates to separation of powers concerns. In South Africa, these have played a central role in leading the court to adopt a largely deferential approach to other branches of government. This has affected both the approach to content that has been developed (discussed above) as well as the extent to which these rights have been successful in pressing the government to address the desperation that exists within South African society. I suggest that a revised conception of how to navigate the question of separation of powers should be developed as is a challenge for the new constitutionalism being developed in the Global South.
Finally, I shall consider the question of remedies. Surprisingly, at times, a highly deferential approach to content has resulted in meaningful remedies for litigants. This often occurs within contexts where more determinate content is given to specific rights; indeed, sometimes the remedies themselves help provide some content to these rights which enable them to have a meaningful impact upon the poor. Here, the Courts have adopted a similar approach to that exhibited in the right to food case in India, for instance. I shall argue that whilst strong, concrete remedies are important, they should not supplant the need to develop a principled approach to socio-economic rights that can guide future decisions. Ultimately, South Africa still awaits an adequate doctrine to guide judicial decision-making in particular cases. This is a challenge that needs to be taken up across countries in the Global South and it is perhaps to courts in South America – in particular, the Colombian constitutional court – where a better vision for these rights can be gleaned.
Professor Marcelo Figueiredo, Professor of Constitutional Law, Pontifical Catholic University of São Paulo, São Paulo, Brazil.
The Protection of Social Rights in Brazil and Some Characteristics of These Rights in South America: The Brazilian Constitution does not give uniform treatment to form a concept of the social rights. The intent of this paper is to focus the comprehensiveness of the expression of social rights in Brazil and comment on some cases of Latin American states. There are cases in which budgetary resources cannot be available to satisfy a right or condemnation, but the same can also imply for non-compliance with an obligation undertaken in economic, social and cultural rights matter. The adhesion by part of the Latin American states to the International Covenant on Social, Economic and Cultural Rights and to the Protocol of San Salvador, implies a juridical-constitutional commitment with the duty of progressive realization of such rights and consequently, with the correlative prohibition of regression. Budgetary planning is important for Executive and Legislative powers to take social rights effective, but the role of the judiciary power to guarantee the existential minimum cannot be forgotten.
Professor Paul Anthony Cammack, Professor, Department of Asian and International Studies, City University of Hong Kong, Hong Kong.
Socio-Economic Rights in the World Market: China, India, and the Gang of Five. The entry of China and India into the global economy involves not only the internal transformation of those two societies, but also a significant step towards what Marx called the ‘completion of the world market’ – the expansion of foreign trade and the transformation of social relations of production, and with that the intensification of competition across the global economy. They represent crucial cases, therefore, for the gang of five international organizations most closely concerned with the governance of the global economy – the ILO, the IMF, the OECD, the World Bank, and the World Trade Organization. Over the past two decades these organizations have converged on a programme aimed at reshaping human and specifically socio-economic rights in order to make them consistent with and supportive of the rule of capital, and competitiveness in the global economy. This paper analyses the engagement between China and India on the one hand and the Gang of Five on the other, with particular emphasis upon the most recent OECD Economic Surveys of the two countries, and the 2013 World Development Report – Jobs. It shows that socio-economic rights in both countries are being redefined and reformed in order to bring them into line with the logic of the world market.
Professor Larry Catá Backer, W Richard and Mary Eshelman Faculty Scholar & Professor of
Law, School of Law, Pennsylvania State University.
Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatisation and the Role of Companies in China and India. From the middle of the last century, socio-economic rights have been bound up within the ideology of the state within national legal orders and through the construction of an important edifice of public international law and institutions. Globalization may be changing both the focus and locus of socio-economic rights. The state, and public international organizations have been making room for the multinational corporation and global civil society. In lieu of a hierarchically arranged global system of public power managing socio-economic rights, governance fracture and polycentricity has complicated the regulatory landscape, making it sometimes harder to see where public law ends and private affairs begin. This paper examines the ways in which the development of socio-economic rights has emerged in two of the most important emerging free market economies—China and India. The analysis will be grounded on two case studies, one from each of these states. These will serve to suggest the ways in which both privatisation and corporate actors now play an increasingly important role in realising socio-economic rights, and their effect on the character, locus and focus of those rights. Part II sets the context, focusing on the way in which social and economic rights are understood within India and China. Part III then considers two case studies as a means of structuring discussion; the first from India involving mining by the extractives multinational corporations Vedanta; the second from China and the application of multinational corporation CSR codes of conduct in the face of substantial stress. Part IV concludes with some general observations about globalization, privatization and the advancement of human rights regimes These will serve to suggest the ways in which both privatisation and corporate actors now play an increasingly important role in realising socio-economic rights, and their effect on the character, locus and focus of those rights.
Professor C Raj Kumar, Professor and Vice Chancellor, O.P. Jindal Global University; Dean,
Jindal Global Law School, India
Comparative Perspectives on Corruption and its Impact on Implementing Economic, Social and Cultural Rights in India and China. India and China have experienced high levels of corruption over the years. The most recent Global Corruption Report 2012 published by the Transparency International has ranked India as 95 and China as 75 in the Corruption Perception Index. Corruption in both the countries have been examined from the standpoint of its impact on law enforcement and in particular through the criminal justice system. This paper will focus on the impact of corruption on implementing economic, social and cultural rights in China and India. It will critically examine the interface between corruption and human rights in China and India and to what extent the understanding of the relationship between corruption and human rights can help in evolving a human right to corruption free service in both the countries. While India has a sound constitutional framework and an independent judicial process that has sought transparency and accountability, the fight against corruption continues to occupy the attention of the civil society, media and the Indian citizenry. Corruption has undermined the ability of the government of India to effectively implement economic, social and cultural rights and in particular to fulfill the right to food, education, health, as well as employment guarantees that are provided through legal, constitutional and institutional mechanisms. Corruption in India has also affected the ability of poverty alleviation programmes and social welfare measures to reach the beneficiaries.
While China does not have a similar constitutional framework and a judicial process that seeks transparency and accountability similar to India, there have been a number of attempts in recent times to bring to focus the issue of corruption. A number of stronger actions have been initiated against corrupt officials both within the government as well as the private sector. There have been instances when officials of the communist party have been jailed for crimes relating to corruption. But all these efforts have still not instilled faith among the Chinese citizens that their basic ESC rights will be enforced without corruption. The paper will examine as to how Chinese government is responding to the challenge of corruption and to what extent contemporary measures of seeking accountability through a human rights framework can help in implementing economic, social and cultural rights. The recent announcement of the National Human Rights Action Plan of China (2012-15) is an important step in the right direction, but remains to be seen as to how this plan will get implemented and what are the legal and institutional mechanisms that the Government of the People's Republic of China is willing to take towards implementing economic, social and cultural rights. The paper will also discuss the role and contribution of the National Human Rights Commission in India as far as the enforcement of ESC rights. This will be discussed in the light of more recent suggestions for the establishment of a national human rights institution in China and how it augurs well for the protection and promotion of ESC rights in China. It assumes significance in the light of the fact that China has signed more than 20 international human rights treaties including the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was ratified by the Chinese National Legislature in 2001.
The paper will conclude by making a case for recognizing the seriousness of corruption as a violation of human rights both in India and China. The paper will argue that electoral democracy in India or the administration by the Communist Party in China have not helped in the fight against corruption in both the countries. Economic, social and cultural rights as a critical and integral part of human rights agenda in both the countries can be implemented only if urgent steps are taken to establish a society based on the rule of law, that includes legal and institutional mechanisms to fight corruption and seek transparency and accountability in governance. In this regard, the role of the media, civil society, independent commission against corruption, whistleblower protection and other legal and institutional mechanisms that prevail in Hong Kong will be examined to explore as to how these experiences can be drawn upon for implementing ESC rights free of corruption in India and China.
Professor Domenico Amirante, Department of Political Science – Jean Monnet, Naples 2
University, Italy
The Right to Environment in Emerging Economies: A Comparative Approach to India and China. On their way to becoming "new emerging powers" India and China are paying a heavy price in terms of environmental degradation. In fact today, the two countries are surrounded by some of thw world's most severe environmental problems, which have already started to exert enormous pressure on their human and ecological health. According to recent comparative studies on their common environmental concerns, they are also turning out to be major consumers of resources and polluters of the local and the global environment. From the nineties India and China have taken a proactive attitude in promoting sustainable development and have developed an abundant environmental legislation. Nevertheless, despite the presence of extensive environment management frameworks, environmental governance still shows many problems in terms of effectiveness and efficiency. After briefly describing the constitutional and legislative status of environmental protection in the two countries the paper discusses the response of both legal orders to the "enforcement gap", emphasizing that, in spite of similar environmental problems, the legal solutions have been quite different. With respect to the constitutional protection of the environment, India and China show a sharp contrast between the Indian comprehensive approach, insisting both on the institutional and individual dimensions of environmental protection, the the Chinese constitutional regulations where the only active subject in environmental protection is the State. On the contrary, the environmental legislations of the two countries follow parallel trajectories, covering nearly all environmental problems with specific and detailed laws that are only partially or unsatisfactorily applied.
In recent years India's and China's governments have taken a decisive engagement for the solution of their environmental problems, but India seems more attuned and performing in the reinforcement of legal measures (with the creation of very important institution like the National Green Tribunal in 2010) while China is slowly developing the judicial enforcement and giving the priority to the involvement of the corporate world through market based instrument or through the fixation of quality standards as policy objectives. Without neglecting the distinctive Chinese cultural characteristics, a shift toward a right's approach to environmental protection could lay down the social foundations for a really sustainable development.
Professor Randall Peerenboom, Professor, La Trobe University; Associate Fellow, Oxford
University Centre for Socio-Legal Studies, UK
The Role of Courts in Enforcing Socio-Economic Rights in China and India. Compared to the average lower-middle income country, China has done relatively well on most social and economic indicators, generally outperforming India on most measures. Chinese courts, however, have generally played a limited, and rather ineffectual, role in implementing economic and social rights (ESR). Rather, ESR have been promoted through government policies and implemented through political and administrative channels. In contrast, Indian courts have been one of the world's leaders in pursuing a robust role for the judiciary in resolving ESR cases.
This article considers what the role of the courts could and should eb in implementing ESR in China. Part I surveys recent global developments promoting and giving greater bite to economic and social rights, as well as some of the main controversies, debates, fault lines and approaches to promoting, protecting and fulfilling ESR, with particular attention to the role of the courts. Part II provides a general introduction to the social, legal, political and economic contextr in China, and suggests that the overall environment is if not hostile, at least not promising, for a robust role for the courts in protecting ESR, notwithstanding some potentially positive factors. Nevertheless, there is still some room for the courts to play a positive role in implementing ESR. Part III provides a brief comparison of the situation in India. Part IV provides some suggestions regarding the way forward for Chinese courts, suggesting that what is needed is an approach that considers all factors: absolute minimums and core rights; the level of development nationally, regionally and locally; community consensus and popular opinions; institutional constraints; and the role of the courts within the Chinese constitutional structure and polity.
Professor Parmanand Singh, Visiting Professor of Law, O.P. Jindal Global University; Formerly Professor and Dean, Faculty of Law, University of Delhi, India.
Enforcing Socio-Economic Rights through Public Interest Litigation: An Overview of the Indian Experience. Public Interest Litigation (PIL) was evolved by the Indian Supreme Court in the late 1970s to provide access to justice to the poor and the disadvantaged people who due to poverty, lack of resources or other disabilities, were not in position to approach the courts for the redress of their grievances. PIL is a unique remedial jurisdiction which has no parallel in the world, allowing any public spirited citizen or a social action organization to approach the courts to seek redress on behalf of the disadvantaged people who are either the victims of governmental lawlessness, social oppression or denied their constitutional or legal rights. The Indian PIL movement has developed as a result of an informal nexus of pro-active judges, media and social activists. PIL strategy has created a new kind of people-oriented social movement invoking judicial power for the emancipation of the poor and the oppressed people.
The Indian experience shows how a powerful and activist judiciary can develop powerful socio-economic rights jurisprudence by a creative and innovative interpretation of the Constitution. Human rights activists have used the courts as a means of struggle to secure socio-economic rights through the devise of PIL. Using human dignity as the central idea implicit in the fundamental right to life under Article 21 of the Constitution, the court has recognized and enforced various socio-economic rights such as right to food, health, education, and means of livelihood etc by integrating non-enforceable directive principles into enforceable fundamental rights. In some PIL cases the Court has relied on international human rights conventions including ICESCR in declaring few social and economic rights as enforceable fundamental rights.
Through its PIL jurisdiction the Indian Supreme Court has given impressive judgments by protecting the rights of the forced, child, migrant and bonded labor, mentally ill, persons in need of emergency medical care, and the people living below poverty line. For enforcing social and economic rights the Court has, in some cases, issued binding directions to the state authorities be complied with in time schedule with a forewarning of the consequences of disobedience or non compliance. The Court has in some cases has appointed its own commission to monitor the implementation of its orders.
Some PIL decisions have also catalyzed changes in law and policy in the area of socio-economic rights. For example some recent changes in law and policy in the field of primary education, food security, medical care, are owed to the PIL judgments declaring them as enforceable fundamental rights.
The Indian experience also shows that the impact of PIL on the lives of the poor and the disadvantaged has been marginal. The judicial declaration of right to food, medical care, means of livelihood as enforceable fundamental rights have not resulted in regime of positive entitlements.
By refusing to interfere with the policies of privatization, globalization, disinvestment and developmental projects, Supreme Court has exposed itself to the accusation that during the phase of economic liberalization the court’s ideology has shifted in favor of the rich and against the socio-economic rights of the workers and indigenous people.
Despite such criticisms, the PIL movement led by the Indian Supreme Court has consistently received huge public support. Legal victories in PIL cases have been utilized for promoting drive for social movements, for launching proposals for institutional and legal reforms, and for enhancing governmental accountability. PIL jurisdiction may not be a substitute for failed political and administrative institutions but it can surely be used for a culture formation in which the political executive is made sensitive towards the realization of socio-economic rights.
Dr Leïla Choukroune, Senior Lecturer in International Economic Law, Faculty of Law, Maastricht University, The Netherlands
The Paradox of Justiciability: Labour PIL in China and India. With the global economic slow down unveiling the limits of their foundations, the Chinese and Indian miracles are deeply questioned by popular unrest and aspirations. Strikes and protests are erupting at an unprecedented pace everywhere in the two countries. These waves of revolts against an economic system and a political regime often perceived as unjust as repressive are taken very seriously by Chinese and Indian leaders who fear this popular dissent could put an end to a much needed social stability and economic growth. While labour conflicts are increasing, their settlement is also taking a new form with unexpected consequences. Both in China and India, for different socio-political reasons and with diverse legal manifestations, the apparition, development and limitation of a rights-based movement often referred to as Public Interest Litigation (PIL) indeed deserves special attention.Public Interest Litigation emerged as a rights advocacy strategy in the United States civil rights movement of the 1960s and has been broadly used worldwide to describe the many ways general grievances relating to the enforcement of socio-economic rights have been litigated by the courts and remedies awarded to the victims of the State. “Judge-led” and “Judge-induced” in India, the Chinese incarnation of PIL is a rights-based and civil society-led movement using the law as well as existing judicial avenues as powerful tools for social emancipation hence furthering the basic legal regime offered by the Chinese Constitution and other legislative developments. They both find an original yet controversial development in labour related cases. Neither the Indian nor the Chinese Labour PIL is however deeply questioning the politico-economic situation or the law.In this context one could question the possible side effects of the justiciabilty of socio-economic rights in emerging economies. Far from the ready-made doctrine on justiciability and democracy- and its critics-, the Chinese and India contemporary Labour PIL bring a new contribution to the more general debate on the realization of socio-economic rights and justice in emerging economies.
Dr Arun Kumar Thiruvengadam, Assistant Professor, Faculty of Law, National University of Singapore, Singapore
Exploring the Relationship between Constitutionalism and Impoverishment: Comparing the Experiences of India and China. In my contribution to the conference, I will seek to build on a recent co-authored publication that sought to understand the relationship between constitutionalism and impoverishment in a comparative setting, analyzing the issue in several specific contexts in Asian and African jurisdictions. For this conference, my focus, drawing from the research conducted for the larger project, will be upon the experiences of India and China since they became free and independent nations around the same time in the middle of the 20th century.
Unlike some of the other participants who will focus on specific social and economic rights, my paper will seek to address broad issues involving poverty, going beyond the issue of social and economic rights. My argument will be that before diving into the specific contexts of social and economic rights, one needs a much broader understanding of the other factors in the political, social, economic and legal settings that affect these issues.
Ms Karen Kong, Assistant Professor, Faculty of Law, University of Hong Kong
Social Justice and Social Rights in Hong Kong: Recent Judicial Review Developments and Proposal for Legislative Change.Despite Hong Kong today enjoys a very high level of economic development with per capita GDP of HK$266,026 in 2011, poverty amidst plenty is a serious concern and continues to worsen in recent years. The Gini Coefficient of Hong Kong in 2011 is at 0.537, which has exceeded the benchmark for a harmonious society at 0.4.
Poverty issues in Hong Kong are multi-facet. It is hard to say that Hong Kong poor is facing absolute poverty similar to those in developing countries, but relative poverty in urban area plagues different groups of underprivileged in society, including the elderly, working poor, new migrants and ethnic minorities. Poverty gap increases social disharmony and conflicts. There seems to be a general negative sentiment towards the rich, especially land owners and property developers. We also see an increasing polarization and stigmatization of Mainland immigrants in Hong Kong.
The factors that contribute to the widening poverty gap is multi-dimensional, including the economic-political system of Hong Kong, transformation to a knowledge-based society, demographic change, globalization, and more fundamentally, the question of whether limited government redistribution in a free market system has contributed to the concentration of wealth at the top strata of the society at the expense of the poor.
Because of the limitation of government resources and competing demands of needs, the court room has often been the battleground for settling difficult issues concerning welfare distribution and socio-economic policies.
This paper is a study of the recent developments in judicial review cases that concern social rights and social justice. It will evaluate the approaches of the court in dealing with legal questions that concern the provision of welfare, entitlement to affordable housing, and distribution of hospital resources, etc. It will discus the success of the court in upholding social rights in light of the political context of Hong Kong. Based on the respective roles of different branches of the government, the paper will make some suggestions on the feasibility of the use of law to tackle poverty and protect social rights in Hong Kong.
Professor R Sudarshan, Dean, Jindal School of Government and Public Policy, India.
Durability of Human Development Demands Realisation of Socio-Economic Rights. There are many instances in the history of development when "development dictatorships" achieved impressive results. However, the durability and sustainability of these achievements could not be guaranteed. For instance, Indonesia's former President Suharto, during the 32 years of his rule, greatly reduced poverty and advanced the education and health status of Indonesia, and he was even given a UNDP award in recognition of these achievements. Yet the failure to follow a human rights based approach in the course of achieving these development goals led to an institutionalization of corruption, the hollowing out of state institutions, and an economic crisis in 1998 reversed many of these gains, and led to the fall of President Suharto in May 1998. The lesson to be drawn from the history of development is a truth emphasized by Mahatma Gandhi: ends can never justify the means. Only the right means can lead to the right results. Realizing social and economic rights enshrined in international human rights norms and instruments is the most durable and sustainable path towards human development.
Indian Institute of Technology Kharagpur, India.
Vindicated Market and Vulnerable Health Care: Human Rights Perspective.The documentation of human rights in the Constitution of India is largely into two broad categories. On the one hand, fundamental rights are made justiciable in the court of law on the other hand some of the rights are included in the chapter of directives which are made non-justiciable in court of law. The Supreme Court of India has utilized jurisprudential strength of human rights law to expand the gamut of justiciable rights by incorporating non-justiciable rights into justiciable category. The judicial innovativeness has certainly facilitated the recognition process of socio-economic needs as rights but raises a serious conundrum about complete satisfaction of these rights through judicial process. The visible deficiency in effort to realize socio-economic rights after judicial pronouncement instigates a thought process of instituting a debate about remedy of violation of socio-economic rights through forum other than judiciary.Amongst many obligations to fulfill socio-economic needs, the Indian Constitution imposes ‘improvement of public health’ as a primary duty upon the state. In addition to this specific duty, there are provisions which refer to health of working class, children and mother.
With a decade old policy of globalisation, there is a growing trend of the government’s withdrawal from the public health sector and the unregulated growth of private sector. Consequently, millions of Indians are denied of healthy life leading to structural injustice.
In the light of this background, the paper will examine the status and position of right to health in India. Right to health has not been depicted as de jure right in the Indian Constitution, it is portrayed as a constitutional obligation to the state. Though right to health or access to health care has been declared as a right by the Supreme Court, the observable outcomes are not very significant on grounds, perhaps because operationalization requires dynamic and progressive process. In free market economy, right to health is under severe threat from market forces as the mushrooming of private players in health care industry poses serious question on obligation to fulfillment of the right. Health is one of the directives where divide amongst individuals are widening in incremental manner.
The paper will investigate the constitutional position of right to health in India. It will examine executive and legislative initiatives to fulfill the obligation of the state. It will identify judicial pronouncements on right to health. The paper will plunge into status and position of right to health. In conclusion, the paper will attempt to analyze efficacy of judicial dictum to fulfill the cause of socio-economic right.
Dr Frank He, Associate Professor, School of Law, City University of Hong Kong, Hong Kong.
Losing by ‘Winning’: Medical Malpractice Litigation in China. Medical malpractice has been one of the major sources fopr social conflict in China. Drawing on interviews with relevant judges and hospital officials, the is paper explores the extent to which litigation is an effective way for plaintiffs to get their justice. It finds that while compared to other types of have nots, the plaintiffs in medical malpractice cases may fare better in that a relatively high percentage of them obtain some compensation. But overall there are tremendous legal and institutional barriers for the plaintiff in the litigation and because the resources enjoyed by the hospital, the situation has only become worse. The paper presents a unique dynamics of medical malpractice from the context of China, which compels us to rethink the trajectory of the legal evolution, the role fo the courts in realizing social and economic rights in transitional countries, and especially its limit in initiating social change.
Bilateral Investment Treaties (BITs) and the Right to Health: Comparative Study of the Indiann and Chinese BITs. There has been a steady increase in the number of Bilateral Investment Treaties (BITs) from 500 in 1990 to 3116 by the end of 2010. BITs are treaties signed at the bilateral, regional or multilateral level by two or more countries to protect investments made by investors of both the countries. BITs protect investments by imposing conditions on the regulatory behaviour of the host state and thus, prevent undue interference with the rights of the foreign investor. The proliferation of BITs, has witnessed, in the last decade or so, an increasing number of disputes between foreign investors and host states. In light of the emerging global jurisprudence on BITs, this paper will make the first-ever effort to compare and contrast the BIT programme of two major global and Asian economies – China and India. As of today, China and India have entered into more than 130 and 80 BITs respectively. As a consequence, both the countries have bound themselves to an evolving international law regime on foreign investment. The paper will trace the evolution of the Chinese and Indian BIT programme. It will make an effort to understand how different or similar the reasons behind China and India entering into BITs were. The paper will also compare and contrast, the evolution of the BIT programme in both the countries in light of both the countries emerging as important exporter of capital. A comparison in terms of investment treaty arbitration experiences of both the countries will also be made. Based on the analysis above, the paper will make certain policy recommendations in the field of investment treaty law that will be relevant both for India and China.
Professor Mo Jihong, Professor of Law Institute of Chinese Academy of Social Sciences; Member of Executive Committee of International Association of Constitutional Law, China.
Right to Food and Safety of Food in China. The problem surrounding safety of food has been becoming a hot social issue both in theory and in practice in China. Although the NPC adopted a special law for safety of food and Chinese governments at all levels have made a lot of measures in improving quality and safety of food, it can’t be denied even for Chinese vice premier minister that safety of food in China hasn’t been guaranteed as well as anticipated both by the government and the public. This thesis will focus on probing into the reasons causing the problems in the process of protecting quality and safety of food and point out a correct and effective way for the government to promote the effectiveness and efficiency of food management and supervision by transmitting the traditional thoughts of intensifying management into the modern ideas of protecting right to food based on the unified criterion both at international level and at domestic level.
Professor Mahendra P Singh, Chairperson, Delhi Judicial Academy, India and Dr Liu Jianlong, Lecturer for Constitutional and Administrative Law, Faculty of Law, China Youth University for Political Sciences, China.
Right to Education in India and China. Professor Mahendra P Singh
It is rightly said that education has the same place in modern society as land had in the agricultural societies. Therefore, those who are in a position to have education are in a similar position in the modern society as those who owned land in the agricultural society. Even though India and China may have not yet attained the same level of modernity as the countries in the West have done and to some extent may still be described as predominantly agricultural countries, which is definitely true of India, education in these countries too has been playing a dominant role in their modernisation and the economic and social well being of the society. Therefore, even in these countries, educated persons steal the march over the uneducated even though the latter may be having other possessions including the land. Knowledge, in any case, has always been considered power. As knowledge comes from education, the educated ones will always enjoy power as against the uneducated. Right to education has, therefore, been long recognised as one of the human rights of every person.
Even though from the earliest times in its recorded history education in India has been regarded as the highest attribute and possession of an individual which has played an important role throughout its history, it was not evenly available to all persons. Apart from its non- or limited availability scriptural literature specifically denied access to education to certain categories of persons on grounds of their birth. With the British colonisation of the country from the early 19th century English education slowly started replacing the traditional education in the presidency and other large towns which was accessible only to a few who apart from proximity to these places had the means to avail of it. Reaslising, however, the importance of education for every individual, the Indian national leaders in their first constitutional charter in 1898 demanded a fundamental right to education which was repeated in all subsequent constitutional proposals until after independence from the colonial rule the Constitution of India specifically directed the state to provide within a period of ten years free and compulsory education for all children up to the age of fourteen years (Article 45) and also to promote with special care the educational interests of the weaker sections of the people (Article 46). All educational institutions maintained by the state or receiving aid out of state funds were opened for admission to all people without discrimination on the ground of religion, race, caste, language or any of them [Article 29 (2)]. Right to conserve ones distinct language, script or culture was also guaranteed to all sections of citizens and religious and linguistic minorities were also given the right to establish and administer educational institutions of their choice [Articles 29 (1) and 30 (1)]. As the target set by the Constitution makers could not be achieved within the stipulated time, the Supreme Court read the right to free and compulsory elementary education to all children in the fundamental right to life while education beyond elementary stage was left to the resources available with the state. The Court also recognised the fundamental right of every citizen to establish educational institutions so that people could avail of education if the state failed to provide it to everyone. In 2002 a new fundamental right was added in the Constitution to the effect that “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine” (Article 21-A). In pursuance of this right Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 which apart from requiring the state to make arrangements for providing free and compulsory education to all children between the age of six to fourteen also compels the private educational institutions receiving no financial aid from the state to admit at least 25 per cent children from economically weak sections of the society in the neighbourhood. Challenge to the requirement of 25 per cent admissions in unaided private schools has been upheld subject to the clarification that it would not apply to unaided schools of religious and linguistic minorities. The Constitution also requires the state to provide early childhood care and education for all children until they complete the age of six years (Article 45 after amendment in 2002).
The foregoing arrangements, however, do not solve all the issues relating to access to education at all levels. But efforts are afoot on the part of the state including the judiciary and private persons and bodies to make best possible education available to all persons. How far these efforts have succeeded in making the access to equal education available to every person and to what extent they suffer from constitutional and other legal hurdles are some of the issues that will be the subject matter of my presentation. My colleague Dr. Jianlong Liu will supplement the paper with similar issues in the Peoples Republic of China.
Right to Education in India and China. Dr Liu Jianlong
Just like in India, education has always been and is still highlighted as one of the cornerstones of China and regarded as a benchmark for the progress of development and civilization thereof. However, in the history, the opportunity for education was not made accessible to all common subjects but to those males of certain privileged class of the society. Only after the overthrow of the Qing monarchy, say, in 1913, the ideas of free and compulsory education were introduced into China. Until then it is the idea that a female has the equal right to access the school as a male had been recognized. However, at that time, China was plagued by internal strife and external hostilities. From 1840 to 1949, China had been involved in numerals of wars, either civil or inter-state or world ones, accordingly individual’s right to education was not well guaranteed and realized.
After the Establishment of the People’s Republic of China in 1949, the right to education was endowed and guaranteed to all citizens by the Constitution of the People’s Republic of China, 1954 and its followers, the Constitution of 1975, the Constitution of 1978 and the current Constitution of 1982.
However, soon was China captured by the flood tides of extremely political movements which greatly affected the social, cultural and economic progress and cost millions of lives. For almost 30 years immediately after its establishment, the education along with other social activities was left in nothing but chaos and upheavals.
In 1980s, the Chinese government adopted the reform and open policy and began to take the education much more seriously. The right to education was once again embodied in the text of Constitution, 1982. In 1985, the Central Commission of Chinese Communist Party came out with its resolution on education structure reforms and the principle that the local government should be responsible for the basic education within its jurisdiction. A series of laws have been drafted, published and came into force: eLaw on Free and Compulsory Education of the People’s Republic of China (Yiwu Jiaoyu Fa,义 务教育法，) in 1986; the Law on Protection of Minors of the People’s Republic of China (Weichengnianren Baohu Fa, 未成年人保护法) in 1992; the Law on Education of the People’s Republic of China in 1995 and also their enforcement law and regulations. Moreover, the Law on Free and Compulsory Education was amended in 2006.
According to the Constitution, all citizens have the right and duty to education (Art. 46). he Constitution and the laws guarantee all citizens the equal right to access a free and compulsory education when he or she reaches the age of 6, in case of where the requirements are not well met, not later than when he or she reaches the age of 7. (Sec. 11, the Law on Free and Compulsory Education) The right to education should not be discriminated on grounds of nationality, race, sex, occupation, family background, religious belief, education, property status, or length of residence. In Art 48, the Constitution reaffirmed that the disabled and a female enjoy the same rights in the political, economic, cultural, social and family lives as a man does. Art. 45 (2) provided that it is the duty of the state and the society to take care of the education of disables. Besides, the equal right to education provisions must not be read as preventing the State from giving special benefits to the members from the minorities or western China. To ensure the realization of individual’s right to education, the Constitution also imposed the duty to develop the socialist education enterprises and improve the science and culture knowledge of the people on the state (Art. 19) and the duty to foster and educate the children on the parents. (Art.49(2))
Though individual’s right to education is guaranteed by the Constitution and the laws, there are still some large gaps between the provisions and the realities are still large; which need to be narrowed
1. Though it was provided that the fundamental education should be free, the original Law on Free and Compulsory and the government did not make a sound and enforceable arrangement for the expenses for the operation of the schools. However, the compulsory was not made free in the western China until 2006 and in Eastern China in 2007. In other words, the free and compulsory was never really free in most part of China. Even though the State from time to time promised to increase the budget for education, it was still far from enough when it came to practice. The share of appropriation for education in the budget is still lower than the bottom line promised by the government or proposed by the U.N..In conclusion, the safeguard and enforcement of the right to education as a social right depends greatly on the State and its level of development and progress. This does not excuses the State and its subordinate authorities from ineffectively taking or omitting to take measures to ensure the full realization of individual’s right to education. In this regard, there is still a long way to go for the Chinese government.
2. The imbalanced economic development, as well as social and cultural development, in different parts of China, mainly among the rural and urban areas, or between the east and the west, leads to the unequal access to the educational resources, such as the affordability of educations, especially in the 1980s, the availability and quality of teachers or schools buildings and facilities, and the access to and utilization of other resources, too. This also leads to certain phenomenon called immigrating for college entrance examinations.
3. It should also be noted that the right to education is vulnerable to the infringements from the local public authorities. During the beginning years of the enforcement of compulsory parenthood planning, lots of the children who are born unexpected had been and in some places nowadays are still denied the registration of residence (Huji Dengji, 户籍登记). As a result, they may not be eligible to public education when they have reached the school age.
4. For the last decades the issues concerning the education of the children who recurrently move to one city to another with their parents, of whom most are peasants, have unprecedentedly caught the attentions. It is true that the Ministry of Public Security together with the Ministry of Education promulgated the Interim Provisions on the School Attendance of Recurrent Juveniles(Liudong Ertong Shaonian Jiuxue Zanxing Banfa, 流动儿童少年就学暂行办)in 1998 and tried to resolve the problems concerned by providing that they may attend the local schools where for the time being they stay with their parents. However, This regulation is impracticable and has always been neglected by the local governments. It is hopefully that such situation will be improved while both the central and local governments has been striving to build special schools for them or to expand the existing local schools to accommodate them.
Dr Surya Deva, Associate Professor, School of Law, City University of Hong Kong, Hong Kong.
‘No Child Policy’ vs. ‘One-Child Policy’ in Emerging Free Markets: What did the Difference Mean for Women in India and China? This paper seeks to compare the socio-economic status of women in India and China. The focus, in particular, will be on the following status-related variable: sex-selective abortions, female infanticide, gender imbalance, infant mortality rate, malnutrition and access to primary education.
The above comparison in the status of women will be done against the backdrop of two conceptual tools. First, I will explore whether the presence of the ‘one child policy’ in China and the absence of any such policy in India – labelled as ‘no child policy’ in this paper – had any significant effect on the status of women in respective countries. Second, the paper will examine the influence, both positive and negative, that the free market economy may have had on the status of women in India and China in the last two to three decades.
Professor Shi Meixia, Professor of Labour Law, Labour Relations and Social Security, School
of Economics and Management, Beijing Jiaotong University, China.
How to Protect the Dispatched Employees in Chinese Situation. Since China has a big size of population, the issue of employment is especially focused by each governmental task always. Chinese government at different levels have carried out very positive policies for several decades, therefore, the unemployment rate in China is very low. However, the philosophy of Social-Economic needs both the figure of employment and the quality of employment.
One of the facts of labor market in China at present is that the number of informal employment is growing very fast, especially dispatched workers. This is not only the picture in China but also in many countries. The model of dispatched workers has its reasonable base, but an obvious fact is that this kind of employees are not protected by the law and the companies’ rules as the formal employment workers , including wages, welfare and other working standards. Even more, the dispatched employment is becoming a main form of recruitment in many working units.
The counter-measures may be how to reduce the number of dispatched workers; another approach is how to put the dispatched employees into the framework of social protection as the formal sector of employment.
Dr Lin Feng, Associate Professor, School of Law, City University of Hong Kong, Hong Kong.
Judicial Protection of Labour Rights in China and Its Constitutionality.The further development of market economy China has led to the diversificaiton of labor relationship and consequently various phenomena of violaiton of the rights and benefits of employees. In order to address such problems and provide better proteciton to the employees, CHinese naitonal legislature enacted the Labor COntract Law in 2008 to supplement the 1994 Labour Law. During the period between the enactment of the new labor law and its actual implementaiton, the stringent requirements under the new labor law had led many enterprises to adopt various measures to avoid the potential increase of labour costs due to the implementation of the labour contract law. Against such background, labour disputes have risen sharply in the past several years. In oprder to resolve such disputes timely and efficiently, courts at different levels in CHina have issues various rules which are equivalent to legislation (judicial legislation). This paper discusses the constitutionality of judicial legislation.
Part One of the paper will provide a summary of various kinds of judicial legislation which has already been issued by different courts at provincial level, i.e., provincial higher courts, and intermediate courts. They include those adopted by Jiangsu, Zhejiang, Guangdong, Shanghai, Nanjing, Shenzhen. Such judicial legislation has revealed three problems. The first is that some of their substance is in conflict with the labor contract law or the law on labor dispute mediation and arbitration. The second is that many judicial legislation has provided normative rules in areas not covered by the labor contract law. The third is differences in various judicial legislation may lead to the adoption of different standards in different cases and therefore different judgments in similar cases.
Part Two of the paper analyzes the nature of judicial legislation. First, recent judicial legislation is different from traditional judicial interpretation power enjoyed by the Supreme Court as the latter gets its authorization from the NPCSC. But even judicial legislation by the Supreme Court has exceeded its authorization because the NPCSC has only authorized the Supreme Court to exercise its interpretation power in the process of adjudication. Second, judicial legislation is in nature not within the scope of judicial policy. Third, judicial legislation is in nature cannot eb defined as continuing development of law. It is generally accepted that courts have the authority to fill in the gaps left in statutory legislation in the process of adjudication. But the exercise of such function is different fundamentally from the exercise of legislative power. It should only be supplemental and case specific. Current judicial legislation is clearly beyond that.
Part Three examines the constitutionality of judicial legislation. First, though some scholars have argued that judicial interpretation is lawful in China and has even become a constitutional convention, I am of the view that judicial interpretation by the Supreme Court in the form of judicial legislation is in conflict with the 1981 NPCSC authorization and also the allocation of statutory interpretation to the NPSCS under the legislation law. Second, though the Supreme Court enjoys judicial interpretation authority, such authority is limited to interpretation of legislation in the adjudicative process. Judicial interpretation authority should not be exercised in absence of or outside adjudication. Third, judicial interpretation in the form of judicial legislation is inappropriate constitutionally and outside the scope of judicial function. Fourth, with the development of Chinese legal system, the historical necessity and justification for the exercise of judicial legislation is no longer there, and continuing exercise of judicial power in the form of judicial legislation is no longer justifiable.
Part Four of the paper discusses the alternative if judicial legislation is going to be abolished due to its unconstitutionality. While acknowledging the authority of the Supreme Court to issue normative rules, its exercise should be limited to judicial procedure in which it has expertise. On the other hand, gaps may exist in written legislation, courts should be allowed in principle to fill in such gaps. To issue is what mechanism should be used to achieve this objective. The author argues that case guidance system through precedents is a better choice.
The paper concludes by arguing that judicial legislation by all courts in China including the Supreme Court in China is unconstitutional and it should be replaced by an improved case guidance system.
Dr Zhu Guobin, Associate Professor, School of Law, City University of Hong Kong, Hong Kong.
Right to Social Security: International Norms and Standards and Chinese Practice. The current Constitution (1982) proclaims that: “The socialist system is the basic system of the People’s Republic of China”, under which citizens’ right to work and right to enjoy social security are protected. The Chinese government has made remarkable achievements in ensuring its citizens’ social rights, and in improving social security management and services. After years of experiments and practice, a social security framework has taken shape. As assessed by a governmental White Paper, “after years of trial and effort, a labor and social security system corresponding to the socialist market economy system is now basically in place”.Professor Li Jianfei, Professor, Renmin University of China, China.
However, China is faced with an onerous task of promoting its work and improving its system in this regard. Premier WEN Jiabao specifically noted in April 2010 that the Chinese social security system was incomplete and defective and the major problems consisted of: uneven development of social security in urban and rural areas characterized by the outdated system practiced in countryside; narrow coverage of some basic security systems; low level of coordination of insurance funds; and low level of guarantee by insurance schemes. It can be observed that the salient and serious problems lie in the poor social protection of peasants, migrant workers, peasants whose land has been expropriated, unemployed in cities, and the disabled in both urban and rural areas. All this necessitates accelerating the improvement of social security system and law.
The paper, after a brief discussion of the definition of social security in the Chinese context, first examines the law-making progress since the 1980s and comments the achievements China has made so far, with reference to the widely-recognized international norms and standards that are mainly formulated by the International Labour Office (ILO) and the United Nations (UN) human rights bodies. It aims at critically assessing the principles underlying the legislation, and the standards adopted in. At last, the paper identifies the subsisting problems of system and law, and based on a comparative approach, make recommendations when appropriate for the purpose of improving social security system.
China’s Legislation and Reform of Social Welfare.
1. The Welfare of the Elderly
Welfare of the elderly aimed at “there are endowment insurance and medical insurance, something to do and something to enjoy for one in his old age." Law of the Protection Rights of the Elderly is made in principle on the issue of the old people's social welfare in the chapter of "Social Security". Many local areas also developed regulations to protect the elderly. Earlier this year, the NPC Standing Committee set up a committee to improve “Law of the Protection Rights of the Elderly", trying to establish the legal system of mechanism of admittance, regulation and retreat Among them, whether that the children “should often go to get together with their parents" should be a statutory duty caused widespread concern in society.
2. The Welfare of the Disabled
In December 1990, China formulated the "Law on the Protection of Disabled People", which is China's first social security legislation, and provides a comprehensive welfare system of people with disabilities. In April 2008, the newly revised Law strengthens the safeguards of the interests of people with disabilities. Priority for children with disabilities to be given treatment of rescue and rehabilitation The rights to receive education: allowance of boarding living expenses. The system of compulsory proportional employment for the disabled Cultural rights: the library of the blind audio books. The right of support: those who are unable to work is supported by government. Barrier-free rights: Public transports shall gradually reach requirements barrier-free accessibility for the disabled.
3. The Children Welfare
Chinese Ministry of Civil Affairs promulgated the "Basic Regulations of Children's Social Welfare” to strengthen standardized management of children's social welfare institutions and protect children rights. This is applicable to all types institutions of social welfare services, providing services of conservation , rehabilitation, health care, education, child custody and other services for the orphans, abandoned and disabled children, centers of social welfare of children, SOS Children's Village, schools of orphans, rehabilitation centers of disabled children, community class of special education and so on.
4. The Difficult Problems in the Enactment of the Mental Health Law
Mental health legislation began since 1985, and until June 10, 2011, the State Council Legislative Affairs Office has announced the text of the Mental Health Act (Draft) for public comments. This legislation, which lasted for 26 years and ten drafts, is known as the most difficult to make in the history of legislation from 1949. Mental Health Law (Draft) after the announcement has aroused great controversy, the focus of which is the issue of compulsory hospital. In essence, this is how to deal with "mental ill" of non-mental patients. This is not a purely medical issue, but a issue of protection of human rights. Thus an interesting phenomenon arises: the community is highly concerned about the mental health legislation the not through the treatment of mental patients, but the problem of non-mental patients.
No comments:
Post a Comment