The Balance between Security and Liberty: From a Comparative Perspective of Germany’s and China’s Anti-Terror Law

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Mr. Zunyou Zhou (PhD student) (周遵友)

Max Planck Institute for Foreign and International Criminal Law

The Balance between Security and Liberty:

From a Comparative Perspective of Germany’s and China’s Anti-Terror Law

I. Introduction
The 9/11 terrorist attacks are widely regarded as a watershed in the global criminal justice. The US, traditionally perceived as a leader of the free world, overreacts to the terrorist danger and takes repressive measures to address it. Other countries follow suit with similar actions to strengthen public security and restrain civil liberty. Against the background of global fight against terror, anti-terror legislation in Germany has always been a topic that sparks intense debate. Condemnation of human rights violations occurs when China takes tough measures to strengthen its effort to combat domestic terrorism. The central question remains controversial, whether and to what extent Germany’s and China’s anti-terror legislation balances public security and civil liberty.
The object of this paper is a comparative analysis of the underlying causes behind Germany’s and China’s anti-terror laws from the perspective of liberty. Various human-rights-related issues such as the role of law, judicial independence, central-local relationship, privacy protection and rights of the accused are to be carefully explored. As a conclusion, the paper will highlight the different legal backgrounds of their anti-terror legislation and illuminate their difficulties in balancing security and liberty.
II. Comparison from the Perspective of Liberty
A. Role of Law: The Federal Republic of Germany is a democratic and federal state, characterized by the principle of rule of law. Core elements of this principle include separation of powers, supremacy of law, certainty of law, reservation of law, principle of proportionality, principle of legality and constitutional control. As a guarantee of fundamental human rights, these elements lay a solid foundation for the establishment and development of a rule-of-law state, in which the German anti-terror legislation emerges and operates. By comparison, the People’s Republic of China is a socialist state led by the Chinese Communist Party and socialism is a basic system of the country. There are a variety of constitutional statements similar to those in Western democratic countries. However, China is still struggling for the principle of rule of law for the lack of core constitutional elements to guarantee the fundamental rights of the people. This deficiency shapes the way in which the anti-terror law is formed and implemented.
B. Judicial Independence: In Germany, state authority is exercised separately by legislative, executive and judicial bodies. The judicial power is vested in the judges, who are independent and subject only to the law. The judicial independence protects the judicial power against infringements of the legislative and the executive and constitutes a bulwark against unlawful abuse of power of any kind. In China, courts are theoretically independent from the legislature and the executive, but this cannot be achieved given internal and external institutional obstacles.
C. Central-Local Relationship: The Basic Law proclaims federalism a constitutional principle. Except as otherwise provided or permitted, the discharge of governmental functions is a matter for the constituent states (Länder). The military cannot be deployed within a domestic context to ensure public security. By comparison, China, as a unitary state, practices the principle of “democratic centralism”. Although local authorities are granted varying degrees of leeway, the central government enjoys superior authority. This superiority is also reflected in the central government’s anti-terror campaigns.
D. Privacy Protection: The right to privacy, whether physical or informational, is well regulated and enforced in Germany. Due to the wide use of IT systems and the growing threat of terrorism, the right to privacy is increasingly being restrained. However, this restraint is confined by many material and procedural safeguards. Chinese constitution expressly declares the inviolability of the privacy of residence and the privacy of correspondence. However, China has so far had no specific law to implement the constitutional promise. The right to privacy is especially vulnerable to massive violations in an era of information.
E. The Rights of the Accused: In Germany, the human dignity clause in the Basic Law is a powerful weapon to protect the rights of the accused. Acts of torture and other forms of ill-treatment are prohibited. Death penalty has been abolished. Confessions obtained in violation of these prohibitions are inadmissible in courts. Deprivation of liberty is based on a judicial order. Access to a lawyer is formally guaranteed since their first interrogation. Although China recognizes partially the principle of presumption of innocence, the criminal justice system is still biased toward presumption of guilt. In spite of a significant reduction in number, death penalty is still massively used. The right to defence is not well protected.
III. Conclusion
Germany has amended or enacted many laws to introduce new measures to address the threat of terrorism. The legal reforms are in compliance with the rule-of-law principle embodied by many constitutional core elements which guarantee the protection of human rights. In spite of a consensus that security and liberty are both fundamental values of humanity, it is still highly controversial how the balance between these two should be kept in a changed domestic and global security situation.
By comparison, China has considerable legal latitude to fight terrorism and its anti-terror law appears quite effective. Terrorist suspects in China are confronted with an aggressive and repressive criminal justice. The existing legal system has many deficiencies in the sense of the protection of civil liberty and the legal practice often goes far beyond the limits that are allowed. The State exercises a firm grip over society to achieve stability, sometimes at the expense of fundamental human rights. Given a long and deep-rooted tradition of “rule of man”, the pursuit of rule of law is bound to be a long march.
In the context of building a “harmonious society”, China is drafting its first anti-terror law now. However, current discussions still centre on the necessity of granting more competences to law enforcement departments and very few people focus on the protection of human rights through a proper balance of security and liberty. One may ask: Does China really need to introduce harsher laws to fight terrorism by following the current trend in Western countries like Germany?

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