Weak Courts, Weak Rights: Assessing the Realisation of Constitutional Rights in PRC Courts

It is no use giving citizens rights if they cannot, when necessary, have access to the courts to enforce those rights -The Rt. Hon. Lord Woolf of Barnes Like many other constitutions, the PRC Constitution enumerates a list of fundamental rights that citizens can enjoy. The 2004 Constitutional Amendment adds the phrase "The state respects and preserves human rights" to Art 33 and marks a new page in rights protection in China. However, the violation of citizens' constitutional rights and freedoms by the PRC government and its officials and the unavailability of judicial remedies to curb this phenomenon have long been criticised inside China as well as outside. As a result, the realisation and guarantee of rights and freedom is far from satisfactory. Firstly, focusing on the implementation of constitutional rights clauses, this article analyses why the current constitutional legal framework discourages direct application of the Constitution by/in the courts. Secondly, it examines the attempts made by the PRC courts in the recent past, and discusses their significance in the protection of such rights. Thirdly, it further argues that although there can be no foreseeable substantial institutional breakthroughs in the current context of law and politics, the courts as positive enforcer of the Constitution can still play a limited but important and irreplaceable role in realising constitutional rights. To achieve it, a "dual-track approach" that involves both the NPCSC and the courts is promoted.