The puzzle of emergency powers law in a ‘Chinese-style’ regime
Laws governing emergency powers are a puzzle in China and similar systems. Despite changes since the Reform Era began in the late 1970s, China remains an authoritarian regime without a robust rule of law, strong constitutional restraints on state power and reliable legal protections for citizens' rights. Laws authorising or defining extraordinary authority are not the significant and controversial matters that they often are elsewhere, especially in liberal constitutional democracies.
A regime of China's type (at least in pure form) operates in a permanent, but almost never declared, state of emergency. Laws conferring special powers seem superfluous. China does not have the aspirationally or episodically liberal, democratic, rule-of-law constitutional order that Albert Chen, Raul Pangalangan, H. P. Lee, Andrew Harding and other contributors to this volume describe as partly explaining frequent or lasting – if legally hard to justify – states of emergency in many Asian states. Even this dilute form of what David Dyzenhaus calls a ‘compulsion of legality’ would seem to have little purchase for PRC rulers.
Conversely, a regime of China's type cannot easily bind itself to the mast. Laws articulating preconditions for extraordinary powers or restricting their scope seem meaningless. In China's constitution and politics, courts do not play the vigorous role in policing such legal commitments that judiciaries are – or were – expected to perform in Western constitutional democracies, or the modestly constraining role that Arun K. Thiruvengadam envisions emerging in some Asian states in his chapter.