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Hualing Fu, University of Hong Kong Neither an Emerging Rechtsstaat nor the Remnants of the Old Order: The power to detain in the Chinese 1982 Constitution

China’s 1982 Constitution marked a decisive moment in the country’s historical transition from a revolutionary state to something that remains to be clearly defined. The prevailing view among the Chinese Constitutional scholars is that it is a “mixed constitution” in that, while many of the core features of the prerogative power, in the form of the people’s democratic dictatorship, remains, significant changes have taken place in building toward a normal state based on the rule of law and respect for human rights. This article, utilizing the dual state conceptual frame of Ernst Fraenkel and using the power to detain in China as an example, aims to articulate the nature of Chinese hybrid state under the 1982 Constitution and, in the process, to assess the force and vulnerability of using a late Weimar Republican concept to study an authoritarian state nearly a century later.

In a liberal order, detention power tends to converge on three issues: first, differences in social/political status are no longer relevant, and common legal rules apply to all types of detention based on the fundamental right of personal freedom; second, political mechanisms and legal rules are in place to reduce state arbitrariness in depriving citizens of personal freedom; and finally, detention is subject to enhanced juridical control, with access to lawyers and judicial scrutiny serving as the litmus test for its legality.

China is an authoritarian party-state under the leadership of the Chinese Communist Party. The Party monopolises all political powers and this leadership is unchallengeable. While repression alone cannot adequately explain China’s authoritarian resilience, it has undoubtedly played a key and indispensable role in securing social stability. The repressive arms of the Party-state have been given broad political and legal power to detain in order to maintain the political order. The presence of a prerogative state, powerful and unaccountable to law, is highly visible.

At the same time, since the late 1970s, the Party has embarked on legal reform to regularise and regulate the exercise of state power in the social and economic spheres. A key aim of this reform is for the Party to regain legitimacy and credibility in the eyes of the ordinary people through the promotion of the socialist stat of law. With this goal in mind, the Party thus expands or restricts the state power to detain according to the need to maintain and legitimise the political order. Contrary to detention in a liberal legal system, detention in China continues to diverge because different types of detention are used to fend off different risks and serve different political purposes. Legal accountability varies according to the status of the detainees, the political nature of an offence, and the evolving position of the police in the political and legal system over the decades. Legal control of detention remains weak in politically-sensitive cases, such a national security and corruption-related offences. In those cases, access to lawyers and effective judicial control, the hallmark of a liberal order, are entirely absent or substantively missing. On the other hand, legal accountability in other types of detention has been thickening and deepening, with an enhanced threshold in substantive law, detailed procedural requirements, and increasingly meaningful and important external supervision over the process.

This article explains the demarcation in the power to detain and the interaction between ordinary cases and politicised, sensitive cases; between routine justice and extraordinary justice; and between the normal state and prerogative state.

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