By Ruiping Ye
The Standing Committee of the National People’s Congress of the PRC passed the Patriotic Education Law on October 24, 2023. It is well recognized that the PRC government has extended its reach to every aspect of social life, including speech and thought, but this law offers a good illustration of what the ruling Communist Party means when it promises to “govern the country according to the law.” It means giving policy documents the status of legislation. It is yet another manifestation of the integration of the Party and the state under the current Party leadership.
Relatively short, with only forty articles, the Patriotic Education Law is essentially a manifesto masquerading as legislation. The general provisions in chapter 1 are largely declaratory, aspirational, and abstract. The exception is article 6, which stipulates the content of patriotic education. This includes ideology (from Marxism to Xi Jinping Thought), history, culture, symbols of the state such as the national flag and national anthem, law (with a focus on unification, national security, and defense), and the deeds of Party heroes and martyrs. Together, the provisions aim at promoting the Party’s status as the ruler of the Chinese nation.
[T]he Patriotic Education Law is essentially a manifesto masquerading as legislation.
The titles of the subsequent three chapters—“functions and duties,” “implementation mechanisms,” and “supports and safeguards”—suggest that they will stipulate substantive and concrete powers, duties, and mechanisms. Yet the provisions read like political instructions or government plans. Chapter 2 charges various government departments and organizations with the tasks of guiding, supervising, coordinating, organizing, and promoting patriotic education. Chapter 3 provides examples of implementation, such as developing tourism that will foster patriotism and commemorating days of national or historical significance. None of these tasks involve citizens’ rights or duties.
Responsibilities are unclear: some actions will be carried out by “the state,” and article 29 does not contain any subject at all to indicate who will carry out the prescribed celebrations and commemorations on important holidays. The provisions are administrative orders and will be enforced through administrative mechanisms. Article 17 is an exception: it imposes duties on parents or guardians of minors, but no concrete action is prescribed apart from vague expressions such as “support and cooperate with schools” and “guide and encourage minors.”
The only provision in the law that has some degree of specificity and is potentially enforceable in law is article 37, which forbids a list of behaviors. These include insulting national symbols, heroes and martyrs; or promoting, glorifying or denying invasions and massacres. The drafter clearly had the anti-Japanese war in mind.
Article 38 allows administrative and criminal penalties to be applied according to laws and regulations. This echoes article 34 of the recently proposed draft revision to the Public Security Administrative Punishments Law, which prescribes punishments for, among other things, expressions that may hurt the feelings of the Chinese nation (伤害中华民族感情) or insult heroes and martyrs. Article 34 was criticized by Chinese legal scholars for purporting to punish acts that lack an objective definition, for its potential to be misused, and for overreaching into the area of dress codes.
The Patriotic Education Law does not contain language such as “hurt the feelings of the nation,” but the list of forbidden acts in article 37 corresponds to that in article 34 of the draft revision of the Public Security Administrative Punishments Law. Further, the provision of “other behavior forbidden by laws and regulations” at the end of article 37 is wide enough to catch other undesirable acts. Articles 37 and 38 will be enforced by employing the revised Public Security Administrative Punishments Law.
The whole law reads more like a set of policy guidelines than legislation. Its objective is political in nature, and its content is mostly instructive to governmental or non-governmental organizations, or is simply aspirational.
The PRC has often been criticized for not distinguishing between laws and policies. While policies can be made into and implemented through legislation, the two have formal as well as substantive differences. Policies are made by political parties or the administrative arm of the government, may be internal or published, articulate administrative goals and guide administrative actions, and are enforced through administrative powers. Laws are made by the legislature through due process, are published, and prescribe specific rights and obligations, functions and duties, which are enforceable at courts of law. The Patriotic Education Law meets the procedural requirements, but it contains no specific legal rights, and lacks legally enforceable obligations. Instead, it relies on other legislation or regulations and rules to advance the general initiatives that it articulates.
Laws are made by the legislature through due process, are published, and prescribe specific rights and obligations, functions and duties, which are enforceable at courts of law.
In the early decades of the PRC, policy and administrative orders often replaced law in regulating social behavior and commercial activities. That practice has greatly reduced, especially after the leadership started to promote “ruling the country according to the law.” However, it appears that now the other extreme is being practiced. Legislation is now used to articulate political directions, replacing policy documents. Since the rebuilding of the legal system in the late 1970s, despite lawmakers’ lack of drafting experience and tendency to state only basic and general principles, they rarely brought ideology into legislation. Even in the Constitution, statements about the deeds and status of the Communist Party were restricted to the preamble. But under the current administration, provisions with ideological import have increasingly been added to legislation. The 2018 amendment of the Constitution is an early manifestation and the most significant example, inserting the leadership of the Party into article 1 and adding patriotic education into article 24.
Further, even though many PRC statutes are general, vague, abstract, and contain “catch-all” provisions, it is rare that a whole statute is made up of a policy document or political manifesto. The Constitution of the PRC is often said to be a political manifesto because the rights contained therein are not enforceable by courts. Even so, much of the Constitution contains concrete provisions on the structure of the state. Even the Law on the Protection of Heroes and Martyrs, passed in 2018, contains provisions detailing how names and images of heroes and martyrs may not be used in commercial settings and the civil remedies their families may claim if such names or images are abused.
If using policy to replace law indicates a system that neglects or disregards law, making legislation that is essentially the same as a policy document is a degradation and misuse of law. In the former, policy encroaches on the territory of law, and in the latter, the essential characteristics of the law have been changed altogether.
The ruling Party has emphasized “ruling the country according to the law,” and the Patriotic Education Law has been praised as a “landmark law” “providing a rule of law safeguard” for promoting patriotic education. Yet, realistically, “law” now means any document that goes through the legislative procedure and is approved by the government organ that has the power to approve it. It has always been known that the National People’s Congress frequently passes laws without scrutinizing their substance. In passing the Patriotic Education Law, the NPC has gone a step further and omitted a formal requisite of law, which is that laws prescribe specific legal rights and obligations enforceable in courts of law. This legislative trend shows that a legal system that is equipped with the necessary institutions and establishes the right procedure can lose the essence of law, where legislation can be degraded to non-law and the legislative body to an office furnishing Party policies as “law.” This is a consequence of the advanced integration of the Party and the state.
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Ruiping Ye is a senior lecturer in law at Victoria University of Wellington.
Suggested Citation:
Ruiping Ye, “China's New Patriotic Education Law Shows the Degradation of Law,” in USALI Perspectives, 4, No. 5, Nov. 17, 2023, https://usali.org/usali-perspectives-blog/chinas-new-patriotic-education-law-shows-the-degradation-of-law.
The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.
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