Grahat Nagara

1. rule of law dankonstitusidalamtradisihukum ChinaThe Chinese Legal Tradition And The European View Of The Rule Of Law: Wu-ShuChenModern Constitution in ChinaLin Feng GrahatNagara

2. Chinese legal tradition value basis • Collectivism established from patriarchal system (rite) and from autocratic state with centralized nationalism (the law). Rite regulating individual obligation to keep peace with the clan. • Mixed legal system. Each dynasty write and compile its own judicial precedents and orthodoxy. Although on special case older judicial principles adopted or absorbed. • legal practices/type

3. the rule of rite • Period of Xi-Zhou and Chun Qiu (11th century BC to 771BC and 770 BC to 476 BC). • Eg. Filial obedience to the elders, judge position. Trial result should also comply to the rite as no other written source of law. • Other characteristics is that the practice of law very depended on the ruler as individual. Therefore the good governance of an estate or a case being judged correctly largely depended on subjective, individual qualities and mettle of the person wielding authority (rule of individual).

4. the ruling by the law • Period of Warring States and Qin Dynasty (475 BC to 221 BC and 221 BC to 206 BC). War between the Wei, Han, Qin (Duke Xiao), Chu, Zhao, Qi (landlords in Zhuo Dynasty). • Legalism develop with Shang Yang (390 – 330 BC) of Qin. • Eg. Same law applicable both for nobleman and commoner (Ying Si (later King Huiwen) banished), military law of the Heaven, the judge had to comply strictly with written law. • Monarch reflected in law, that individual had to obey unconditionally. The state at this time has no longer ruled by blood lineage of patriarchal clan, but institution of regional administration (except for Zhuo with ‘mandate of heaven’). After the death of Yang, the next ruler of Qin keep practicing Yang’s reform.

5. mixed law • Period of Western Han and Qing Dynasty (202 BC to 1912 AD). • Eg. Although judges were expected to try cases according to written law, the written law’s impact on the land was limited – due to vast area of custom and scope of aspect of life. • As the rule of law maintain central autocratic monarchy’s political system. The law became tools which monarch expressed his will and intention including controlling colossal bureaucratic machine. While the rite maintained social basis of the system – patriarchal clan.

6. opium wars and crisis of Chinese legal tradition • Opium wars on Qing Dynasty (1820) give birth to a treaty: • The exception of China’s law for foreigner who committed crime in China. At this moment consular jurisdiction undermining the feudal court. The treaty mentioned that this dictum will be abandoned whenever China introspects and revised its ‘savage and uncivilized’ law. • The treaty and social change give birth to legal reform movement.

7. Qing Dynasty save the Monarch (1902-1911) • Empress Dowager issued a decree to implement new policy and to establish “constitution”. • This introduce clash between the rite supporter and legal theorist. The rite supporter argue that this new ideal has no root and that stability of the state should be based on stability of clan thus patriarchal clan and feudal rights should be maintained. While the legal theorist suggest that its time for China to catch up with the world progress, use the individualism and liberalism as methodology to stand down on its own feet. • Despite the debate, revision of law swept away most portion of traditional spirit. Codified law into actual legal articles established. Important principles such as legality, transparency in trial and judgement, and equality before the law established and codified. The separation of law and its procedural law introduced. (Europanization of Chinese Law).

8. ruling by the law: theory of ancient Chinese • Guan Zi, “a society may be called the Great Order – which is the perfect state for a country – only when everybody in this society, from the monarch himself, through civil or military officials, the nobles, to the common people, abides by the laws.” • Liang Qichao(1936), if the theory of ruling by the law could ever be put into practice, it could only be done by the powerful backing of constitutionalism. • Rule of law paradox, A merchant was selling a spear and a shield in the market. He declared his spear to be the sharpest in the world, and that it could pierce any shield. At the same time he boasted that his shield was the most solid in the world and that it could not be pierced by any spear. The people confuted him with a very simple question: “What happens if you use your spear against your shield?”. • According to legalist, rule of law must be abide by all except the monarch.

9. Early constitutional development (1912-1946) • The establishment of monarchial constitutional structure was suggested and general principles of constitution outlined on 1908. However this constitution immediately swept after Sun YatSen interim president promulgated interim constitution which then accepted by the senate, automatically remove the 1908 constitution. • For the first time of the history of 2000 years feudal of China, sovereignty belong to all people. It is also incorporated election, democratic freedom, and separation of powers. This constitution however then encourage warlords to gain political conquest, which in led to Interim Constitution and introduce totalitarian control. • National Party gained another constitution acknowledgement on 1936 and remained up to 1946 before they was swept away to non mainland (Taiwan).

10. The Common Program (1949) • After expelling the national party, the Communist gain power of whole mainland. The communist party introduce Interim Constitution of People’s Republic of China. The Chinese People Political Consultative Conference (CPPCC) afterward enact the interim constitution (1949). • After serious discussion Mao Zedong, with the CPCC, as inline with the Marxism introduce preamble, seven chapters, and 60 articles of “constitutional document”. It proclaimed the creation and legitimacy of the PRC and laid down the state’s basic policies and tasks, together with the people’s fundamental rights and obligations. • It established that the PRC acknowledged the people’s democratic dictatorship, to be exerted through the people’s congresses and governments at various levels.

11. The 1982 constitution • It officially confirms the primacy of the constitution and the fact that other legislation ought to be grounded thereon. No laws or administrative rules and regulations may contravene the constitution. • The State allows private economy to exist and develop within the limits prescribed by law. Private economy integrates socialist public economy. The State protects the lawful rights and interests of the private sector of economy, and exercises its guidance, supervision and control over it

12. remarks constitution afterwards • After the 1949, the constitution of China amended several times including on 1982, 1975, 1978, and 1954. • If China really wishes to develop a lasting and respectable constitutional order, it may have to give up its instrumental approach and adopt the rule of law principle, of which the 1999 amendments are a first endorsement.

13. Chinese legal tradition and European’s rule of law in comparison

14. Chinese and US constitution in comparison • First, different contextual background and thus objective. While US after the warfare with britain, held constitution to forge nationhood. The first Chinese constitution was to “save” Qing Dynasty. • Second, fundamental aims of US constitution was to have proper balance between liberty and authority, Chinese constitution often held as instrument of economics and political gains of the Communist parties. • Third, US constitution are more rigid then Chinese. Where ammendement required bi partisan agreement. Chinese constitution however easily change with the power of communist party to gain access to the National People’s Congress NPC who had the power to enact constitution. • Fourth, while US constitution is deemed for review by the court and ultimately the Supreme Court. The only organs who had the power to review constitution in China, is the NPC in which also the organ who enact the constitution.