Friday, February 28, 2020

Shasha Li: Commentary on Fengjing Liu, Meaning and Radiation of State "Respect" for Human Rights

Over the course of the last several years, Chinese scholars have been engaging in a very interesting discussion about the way that constitutional sensitivities to human rights affects Chinese law and practice in a number f areas. The conversation intensified after 2004 when the State Constitution was amended to include a third paragraph in its Article 33 that provides: "The State respects and preserves human rights."

This year I have the great privilege of hosting a marvelous visiting scholar from China, Shasha Li. Professor Li is an Associate Professor of Law School of Dongbei University of Finance and Economics. She obtained her Bachelor of Law from Zhongnan University of Economics and Law, her Master of Law at Nankai University; ad her Doctor of Law at Jilin University. Professor Li may be contacted at fishsuncat [AT]

I have prevailed on Professor Li to offer readers in English a glimpse at some f the rich discussion among academics who are considering the application of principles of human rights with Chinese characteristics and compatible with the Chinese political and normative system.

For her first commentary, Professor Li has chosen the essay, "Meaning and Radiation of State "Respect" Human Rights," authored by Fengjing Liu, Professor of Political Science and Public Management School at East China University of Political Science and Lawand published in Academic Exchange (2019 (3)).

The essay follows below.

Shasha Li, Reflections on: 
Meaning and Radiation of State "Respect" Human Rights
Fengjing Liu, Professor of Political Science and Public Management School, East China University of Political Science and Law, Academic Exchange, 2019 (3)

On March 14, 2004, the Constitutional Amendment of the State Constitution  with respect to Article 33, adding a new paragraph 3 ("The State respects and preserves human rights.") was adopted at the second meeting by the Tenth National People's Congress. This article analyzes the meaning of the word "respect" used in this constitutional amendment. Although this amendment is not new, the author has three novel ideas which is noteworthy.

1. The use of the word "respect" conveys the idea that rights are not originated from states. "Respect" which is different from “endow” directs at specific things that already exist and is a kind of performance "after the fact." The use of this word conveys that human rights do not originate from the state, but the state only respects and guarantees the rights that people should or already have through laws. This idea is very important, because the source of the right determines the status of the right. If the right can only be the result of national legislation, it can be taken away by the legislator.

2. The use of the word "respect" established an open rights system. The use of this uncertainty concept provides a constitutional basis and institutional guarantee for the inclusiveness of the basic rights system. The basic rights system established by the Constitution should be open, which should actively absorb new human rights according to the development of economy and culture of the society.

3. The word "Respect" has an obvious value orientation in Chinese context. The alphabetic writing of the word “respect” in Chinese pinyin is “Zun Jing”. The first character “Zun” has an original meaning of wine vessel in ancient Chinese. The ancient Chinese people liked drinking alcohol and were very particular about etiquette. Toasting was often an essential part of drinking etiquette. When toasting was made people should raise the glass which meant respect. So the word "Zun" also extends the meaning of "respect" and it always points to noble things worth pursuing. Taking human rights into account, the use of word “respect” shows that human right is not an insignificant thing, but a beautiful thing from the heart.

The inclusion of human rights in the Constitution was an important event in 2004. For a long time, not only did we not use the concept of human rights in the constitution and the law, but we also considered human rights issues as restricted areas in thoughts and theory. Human rights was criticized as Bourgeoisie exclusive goods. On November 1st, 1991, the State Council Information Office published white paper "The State of Human Rights in China", which is the first official document released by the Chinese government to the world on the theme of human rights. The process of rejection, criticism and contempt to recognition, acceptance, and constitutionalism reflect the progress of the nation's value.

Generally we understand the word “respect” for human rights according to the three-level theory of state’s human rights obligations: Respect, Protection and Realization (implementation) which was established by Abjorn Eide in the study submitted to the United Nations Subcommittee on Prevention of Discrimination and Protection of Minorities. But "respect" in China’s constitution does not simply mean that the state has a negative obligation not to violate human rights. It has more rich connotations. Thus in this way, the term "respect" does has a declarative, programmatic and political philosophy meaning which made it necessary for law hermeneutics to define it substantively when it enters human rights norms in order to avoid meaningless. "Respect" must be translated into an external code of conduct, otherwise there is no legal significance and it is not necessary to stipulate it in the Constitution. Therefore, the Constitution's provisions of "respect" refer to state behavior norm, which is the setting of a standard of conduct. However, this standard is not specified in the constitution. Instead, the job was taken by legislature who arranges the powers and duties of all the state organs through passing the law. Because China does not implement the constitutional review mechanism leading by judiciary, this standard of conduct cannot be verified and judged by a third party.

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