Judicial approach to human rights in transitional China

Introduction: There is no doubt that the courts, as state actors, play an indispensable role in providing effective judicial remedies to human rights violations. However, current scholarship on the role of the judicial remedies for the violation of international human rights is based primarily on liberal democracies. Little attention has been paid to the effectiveness of judicial enforcement in illiberal states because the assumption is that such states are generally hostile towards genuine human rights. In liberal democracies, it is generally assumed that the courts will provide effective judicial remedies to injured parties through coercive orders, which is largely compatible with the legal maxim that ‘where there is no remedy, there is no right’. Nevertheless, current scholarship on models of judicial remedies of human rights violations, whether strong or weak, is grounded primarily in democratic theories of the majority prevailing when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those of the courts. It is doubtful whether such theories are applicable to illiberal regimes. For instance, authoritarian systems are perceived to rely on the courts to confer legitimacy on decisions that may not be fair or equitable. Moreover, it is also generally assumed that illiberal regimes use the courts as pawns to uphold the interests of governing elites and frustrate the efforts of their opponents. Thus, the prevailing impression of illiberal or authoritarian states in the context of human rights is that political parties are non-existent, judicial independence is impaired, freedom of the press is suppressed and citizens are stripped of access to institutions that can effectively protect their interests. However, it cannot be denied that the courts in illiberal states have their own mechanisms of human rights enforcement, no matter how they may differ from those of liberal democracies. On this point, Shapiro explains: ‘An authoritarian regime may choose to establish or maintain an inherited, relatively independent, effective judiciary. It may allow that judiciary some human rights leeway. The judges may define the judicial role to include some judicial review of government actions’.