Another New Year, another article calling for the implementation of the Constitution and the law in China. But in contrast with last year, this article isn’t published in Southern Weekend, Yanhuang Chunqiu or other outlets known for their political outspokenness, but in the Party’s chief theoretical journal, Seeking Truth. It is written by Chen Jiping, the Party Secretary and Vice-Chairman of the Law Society of China, one of the many front organisations under the leadership of the Party that are used to connect different areas of society, including the professions, to the policymaking and implementation process. Chen summarises a number of speeches that Xi Jinping has made since his accession in late 2012 in the field of law, and identifies four central focus form for further legal reform towards a “rule of law China” (法治中国).
First, Chen argues that, in order to foster rule of law in China, a belief in the rule of law must be fostered among the people. In other words, Chinese citizens must identify with and internalise the notion of the rule of law. This, in turn, must be based on practicing the rule of law by judicial and other law enforcement bodies. Second, Chen discusses the problems in law enforcement. He takes aim at favouritism and corruption that takes place within law enforcement bodies, and stresses that laws must be strictly enforced, particularly in the administrative area. Third, Chen proposes a larger role for the people in legal processes, both in legislation and enforcement. He links judicial reform with the “Fengxiao experience” and the current Mass Line campaign, stressing that increased popular participation and a stronger focus on popular satisfaction are necessary. Lastly, Chen calls upon leading cadres at all levels to support the rule of law, vituperating against privilege and corruption.
These arguments sound admirable, but contain many points that have been repeatedly made by observers inside and outside of China in the past. In its ideological perfectionism and its tradition of avoiding public disagreements about policy, Chinese policy programmes often read like the Santa Claus list of a materialist five-year old: it wants it all. It does not choose or prioritise, neither does it clearly outline trade-offs that are inevitable in political and legal decision making. Everyone must be satisfied, therefore everything must be done. There are, however, intractable tensions between ideas and concepts that are central to the notion of the rule of law on the one hand and the current structuring of China’s political structure on the other. These tensions, if anything, are exacerbated under Xi’s new approach exacerbate.
It is, of course, quite difficult to explain exactly what the rule of law is, and it is often best recognised in its absence. But it is possible to point at a number of ideas which could conceivably constitute the concept, and a fundamental assumption should be that, in principle, the law on the books should be applied. Naturally, some discretion and leeway is necessary in view of specific facts in particular cases, and there are always questions about interpretation of particular provisions, but even so, it remains possible to draw some sort of boundary between decisions or outcomes that can be justifiably seen as an acceptable interpretation of the law, and instances of clear abuse. To a certain degree, this means that the rule of law implies a reduction of political control and capacity to shape events, as potential outcomes are constrained by mandatory procedures. In Party ideology, however, law is justified through its outcomes: laws and their application must make people happy, support modernisation and development policy, and ensure that no violation of law occurs. Equally, it must be flexible enough for creative use in maintaining continued Party rule. It seems that there is a paradox, therefore, between a process which arrives at (politically) indeterminate outcomes through predetermined procedure, and a political tradition in which procedures are often applied ex post, to justify a political conclusion that has already been reached. Also, law can impose obligations, such as the obligation to resign when ministerial responsibility requires so. In a system where personnel appointments are, however, more the result of continuous jostling and negotiations, and where you lose if you’re not winning, such obligations would mean an utter reversal of practice and custom.
A second pillar of the rule of law is the publicity of legal norms. It is perhaps needless to say that for people to obey the law, or base their actions on it, they must know what the law is. This question, which norms are applicable to a particular situation, is governed by what HLA Hart called rules of recognition. These rules identify what counts as law within a given system, and can, in Hart’s view, be discovered through the practice of legal officials. When we turn to the Chinese legal structure, we see that there is no lack of written rules of recognition, starting with the statement in the Constitution that it is the highest norm for behaviour. In reality, however, it is clear that outcomes are governed as much, if perhaps not more, by unwritten rules, the qian guize 潜规则. These tacit codes are sometimes connected to Party discipline (and the tension between Party discipline and State law deserves a monograph of itself), but equally often to what insiders in the system can get away with before unpleasant things happen to them. It sounds almost Daoist: the rule that says it’s the rule, is not the rule.
A last aspect of the rule of law is the relationship that law has with society, and how the presence and enforcement of certain rules can fulfil social objectives. Certainly, a large part of the function of law is that it should provide a deterrent against undesired behaviour. But in the Chinese conception, this deterrent does not remain limited to individual cases. Rather, good law results in the dissolution of social contradictions at the collective level. The epistemological basis for this seems to be the hypothesis of the optimal answer: for every problem, a response can be found that is not only acceptable for everyone, but generates outcomes in which all sides end up better off. This approach has deleterious consequences for the use of law, as it does not recognise that there may be cases in which two legitimate values conflict and a zero-sum decision imposes itself. In other words, where law often legitimises social conflict by providing a procedural channel for it to be addressed in a measured manner, the Chinese case seems to delegitimise these tensions, by assuming that the existence of tensions themselves means something is wrong in the state of Denmark.
It is, perhaps, more appropriate at the moment to consider Chinese law as a body of standing orders. They outline standard accepted practices for specific activities, which are to be followed until someone who has the political standing to do so, decides otherwise. Certainly, Xi has amassed considerable authority, and seems to still focus on enhancing discipline. It is, perhaps, in this sense that this article is best understood: the power that must, according to Xi, be locked up in a body of rules is the power of subaltern officials to disobey, not his own. Plus ça change…
Let’s Talk About Building a Rule of Law China
Studying Comrade Xi Jinping’s Important Elucidations on the Rule of Law
Since the 18th Party Congress, General Secretary Xi Jinping has stood on the strategic heights of the future fate of the Party and the country, put forward the struggle objective of building a rule of law China, and has published a series of important elucidations on building the rule of law, which further clarified the direction of and the path for accelerating the building of a Socialist rule of law country. The content of the speeches was profound, pragmatic and innovative, and contained a large amount of sincere feelings of putting people first and linking hearts up with the people, it provided strong theoretical guidance for moving the construction of a rule of law China forward, and symbolized the entry of the construction of a Socialist rule of law country into a new historical stage.
I, Let rule of law become a sort of belief for the whole people
In January 2013, Comrade Xi Jinping gave important instructions on political-legal work under new circumstances, and put forward the magnificent objective of building a rule of law China for the first time. The formation of the Socialist legal system with Chinese characteristics generally resolved the question of having laws to rely on, but rule of law construction remained a matter of arduous work along a long path. Laws cannot just be articles on paper, but they must be written into the hearts of citizens, ensuring that rule of law becomes a sort of belief for the whole people. Comrade Xi Jinping pointed out that we must establish the authority of the law among the broad cadres and masses, ensure that the people fully believed in the law and consciously used the law, shape a belief in the law in the entire society, carry forward a rule of law spirit, foster a rule of law culture, and shape a good atmosphere of studying the law, respecting the law, abiding by the law and using the law in all of society. This has had a major and profound significance for the acceleration of building a Socialist rule of law country.
Belief in the rule of law leads the construction of a rule of law China. Belief in the rule of law means identifying with the law, trusting in the law, abiding by and defending the law from the heart. Whenever rule of law becomes a sort of belief, the people will consciously and voluntarily abide by the law with perseverance for the long term, and make handling affairs according to the law into their life habit. Only if the law is believed in, and it becomes a form conviction, can it be internalized as a standard for people’s actions. Following the deepening of the construction of national rule of law, our legal texts have become ever more perfect, the people’s knowledge and understanding of the law have become ever more rich, but why are there still so many profound problems in legislation, law enforcement, the judiciary and observance of the law? Why does the phenomenon that laws are divorced from reality, and institutions are divorced from reality, still exist? The reason lies in the fact that a belief in the law has not been truly established. With regards to those in government, a belief in the rule of law is the basis for rule of law thinking and role of law methods. Only by believing in the rule of law from the heart, will it be possible to shape rule of law thoughts, and will it be possible to actively, consciously and adeptly use rule of law methods. Where the common citizen is concerned, the basis for the rule of law lies in the support of the people from their heart, the majesty of the rule of law lies in the sincere belief of the people. Only by striving to cast the rule of law spirit and the concept of the rule of law into people’s minds, and form habits where affairs are handled according to the law, the law is sought when problems occur, the law is used to resolve problems, and the law is relied on to dissolve contradictions, can the rule of law release the positive energy of norms in an uninterrupted stream. Comrade Xi Jinping put the rule of law at the height of belief, and so grasped the most central issue in building a rule of law China, this gave prominence to the guiding function that belief in the rule of law has in building a role of law China, and has clear characteristics of the times as well as a major significance in realities.
Foster a rule of law belief in practicing the rule of law. Belief in the rule of law requires gradual accumulation and formulation in the concrete practice of scientific law-making, strict law enforcement, a fair judiciary and complete observance of the law. The popular masses’ belief in the rule of law cannot come out of nothing, to let the popular masses believe in the rule of law, it is first necessary to let them really feel that the law is able to play an effective role, and believe that the rule of law can bring concrete benefits to them. Comrade XI Jinping stressed that: “We must, through unwavering efforts, establish the authority of the Constitution and the law in the entire society, that the broad popular masses fully believe in the law and consciously use the law, make the broad popular masses understand that the Constitution is not only a norm for action that must be observed by the whole body of citizens, but is also a legal weapon that guarantees citizens’ rights”. This requires that legislation must truly reflect the masses’ interests and appeals; it requires that law enforcement organs and judicial organs are able to handle affairs according to the law when the populace needs the protection of their lawful rights and interests, and that fairness is upheld for them. Thus, people are made to believe that as long as something is a reasonable and lawful appeal, a reasonable and lawful result can be obtained through legal procedure. When people feel fairness and justice in one law enforcement or judicial procedure after another, and obtain real assistance, the belief in the rule of law will naturally be built in people’s hearts and in the entire society. Only when the rule of law becomes a universal belief in the entire society, can a rule of law country be realized.
II, Completely move the implementation of the law forward with strict law enforcement as focus point
Comrade Xi Jinping gave high regard to the question of law enforcement, stressing that “the vitality of the law lies in its implementation”, he clearly pointed out the position and role of legislative organs, administrative organs, judicial organs and the broad citizens in the implementation of the law, required that administrative organs take the lead in strictly enforcing the law, raising the capacity of leading bodies and leading cadres at all levels to use rule of law thinking and rule of law methods, strengthening supervision over law enforcement activities, and persisting in eradicating all illegal interference with law enforcement activities.
The implementation of law has become the main contradiction in building a rule of law China. To implement the basic plan of governing the country according to the law and accelerating the construction of a Socialist rule of law country, the complete and effective implementation of the Constitution and the law must be guaranteed. Safeguarding the authority of the Constitution and the law means safeguarding the authority of the Party and the common will of the people. Guaranteeing the implementation of the Constitution and the law means the guaranteeing the realization of the people’s fundamental interests. The great majority of the main problems that our country’s rule of law construction faces exist in the area of legal implementation, such as the fact that supervisory organs and concrete institutions guaranteeing the implementation of the Constitution and the law are not complete; law enforcement and judicial problems that relate to the personal interests of the popular masses are still relatively prominent; a number of public servants abuse their power, neglect their duty and engage in malpractice, break the law during law enforcement and even bend the law for relatives and friends, which gravely harms the authority of the State legal system; the constitutional and legal consciousness of citizens, including a number of leading cadres, remains to be further raised. In this regard, Comrade Xi Jinping requires that “we must strengthen the implementation of the Constitution and the law, safeguard the unity, dignity and authority of the Socialist legal system, shape a rule of law environment in which people do not want to break the law, cannot beak the law and do not dare to break the law, and ensure that there are laws to rely on, law enforcement must be strict, and violations of law must be prosecuted.” Through the complete implementation of the Constitution and the law, a shift from a “system of laws” to “a system of rule of law” is to be realized.
Strict law enforcement is the heaviest of heavies in the implementation of the law. In our country, more than 80 per cent of laws and regulations are enforced by administrative organs. Comrade Xi Jinping pointed out that: “administrative organs are the main bodies for the implementation of laws and regulations, they must take the lead in strictly enforcing the law, safeguarding the public interest, the people’s interests and social order. Law enforcers must be faithful to the law, they cannot suppress the law with power, and personally defy the law, neither can they bestow favours outside of the law or bend the law for relatives and friends. All levels’ leading organs and leading cadres must raise their ability to use legal thinking and legal methods, strive to concentrate a consensus for reform, standardize development activities, stimulate the dissolution of contradictions, and guarantee social harmony through the rule of law”. The requirements on law enforcers has risen from the pure strict enforcement of the law, to loyalty to the law and raising the ability to use legal thinking and legal methods, this grasps the crux of the problem. A number of prominent problems that currently exist in the area of law enforcement, such as coercive law enforcement, for-profit law enforcement, selective law enforcement, wilful law enforcement, etc., spring from the fact that a number of law enforces lack reverence for and loyalty to the law and the rule of law in their hearts. Only if loyalty to the law is established, can the problem of legal violations in law enforcement be thoroughly resolved from the ideological source. At the same time, it is also necessary to strengthen supervision over law enforcement activities, determinedly eliminate illegal interference in law enforcement activities, determinedly prevent and overcome local protectionism and departmental protectionism, determinedly prevent and overcome law enforcement work being driven by interests, determinedly punish corrupt phenomena, and ensure that power comes with responsibility, the use of power us supervised, and violations of the law must be prosecuted.
III, Pay even more attention to the core position of the people in building the rule of law
The popular masses are the core of building a rule of law China, the satisfaction of the popular masses is the final norm to measure the building of a rule of law China. Comrade Xi Jinping pointed out that the people’s yearning for beautiful lives, is our struggle objectives; we must listen to the calls of the people at all times, respond to the people’s expectations, guarantee the people’s rights of equal participation and equal development, and safeguard social justice and fairness; we must, with the interests of the broadest people in mind, persist in a judiciary for the people. These important elucidations reflect the governance concept of putting people first, and ensure that the building of a rule of law China has a broad and profound popular basis.
Realizing, safeguarding and developing the fundamental interests of the broadest people are the objectives of rule of law building. Persisting in and respecting the core position of the people is first and foremost reflected in realistically guaranteeing the people’s constitutional and legal rights. Comrade Xi Jinping pointed out that “only by guaranteeing that the people are all equal in the face of the law, respecting and guaranteeing human rights, and guaranteeing the rights and liberties that the people enjoy according to the law, can the Constitution deeply enter into people’s hearts and march into the popular masses, and can the implementation of the Constitution truly become a conscious act of the whole body of the people”. We must raise the scientific and democratic levels of legislation, perfect legislative work mechanisms and procedures, broaden orderly participation by the masses, fully listen to opines from all sides, ensure that the law correctly reflects the demands of economic and social development, and coordinate relationships of interests even better. We must persist in a judiciary for the sake of the people, improving judicial work styles, serve through enthusiasm, and realistically resolve the problem that it is difficult for the common people to file lawsuits. This requires that we establish a work orientation that puts the people central, put the people in the highest position in our hearts from beginning to end, implement the Party’s mass line in every segment of legislation, law enforcement and judicial work, and persist in linking up with the masses, sticking close to the masses, relying on the masses and serving the masses.
Make relying on popular participation into the basic method for building the rule of law. The masses are most concerned about their personal interests, they are most clear about the reasons why contradictions and disputes come into being, and the crux of problems that exist, and they have the most wisdom to resolve them. Comrade Xi Jinping requires that we must persist in and develop the “Fengqiao Experience”, be good at using rule of law thinking and rule of law methods to resolve contradictions and problems that affect the masses’ personal interests. We must innovate work methods, integrate the Mass Line and rule of law thinking, firmly rely on grass-roots organizations and the broad masses to prevent and dissolve social contradictions, and let the masses themselves team up to resolve their own problems through rule of law methods. Persist in scientific policymaking and democratic policymaking, make the process of policy formulation into a process that listens to the popular will, removes the people’s worries, and wins the support of the masses. We must fully rely on the popular masses, consciously accept supervision by the popular masses, realize the integration of specialized organs and mass participation, and persist in marching the Mass line. We must expand judicial openness strength, increase law enforcement transparency to the largest extent, guarantee parties’ and the popular masses’ right to know and right to supervise, and respond to the popular masses’ attention on and expectations about judicial fairness and openness. Perfect people’s assessor and people’s supervisor systems, and expand channels for the orderly participation of the popular masses in the judiciary. We must form effective restraint and supervision mechanisms for the use of judicial power through the endowment by institutional design and the guaranteeing of procedural rights of parties and their counsel.
Make the satisfaction of the people into the fundamental standard to test the results of the building of rule of law. Legislative, law enforcement and judicial organs must persist in making the satisfaction of the people into an objective, and incessantly raise the sense of identification and the level of trust of the popular masses. Comrade Xi Jinping pointed out that what is called judicial fairness means that rights that are infringed certainly will be protected and granted relief, and that law-breaking and criminal activities must absolutely be sanctioned and punished. Only if the popular masses are able to guarantee their own lawful rights and interests through judicial procedures, can the judiciary have credibility, can the popular masses trust the judiciary, can the law truly play the role in defining a persons’ status and ceasing disputes, and can the final function of judicial adjudication be realized. The people pass the final judgment on the complete value of judicial work. Comrade Xi Jinping stressed that: “We must strive to let the popular masses feel that they have received fairness and justice in every case” Implementing this judicial work objective, on one hand, requires a focus on fairness and justice in individual cases. Starting from raising the case-handling quality in every concrete case, and through dealing fairly with thousands upon thousands of cases, can complete trust of the people in judicial fairness be accumulated. Persist in preventing unjust, falsified and mistaken cases, unfair dealing in every concrete case means concrete injury to justice and fairness. On the other hand, we must focus on making fairness and justice felt, completely implement judicial openness, expand the enforcement strength of procedural law, and ensure that judicial fairness is realized in a such a manner that the popular masses can feel it. We must further raise mass work capacity, the law should not be icy cold, judicial work is also mass work. Judicial workers must closely link up with the masses, if they do not understand the language of the masses, do not understand the hardships of the masses, and are not aware of the appeals of the masses, it will be difficult to grasp correct work methods, and it will be difficult for them to play their due role. Mass work capacity is an important component part of judicial capacity, it is necessary to establish mechanisms for legislative officials and prosecutorial officials to go to the grass roots and link up with the masses, to ensure that judicial personnel incessantly raises its horizon in practicing for the sake of the people, derive strength, raise their abilities, and truly perform judicial work to the bottoms of their hearts.
The Law Society of China is a people’s organization under Party leadership, it is a bridge and node for the Party and the government to link up with the broad legal scholars and legal workers, and it bears important responsibility in letting legal research flourish, moving ruling the country according to the law forward, and building a rule of law China. The work of the Law Society equally must establish a correct mass view, realizing the protection and development of the fundamental interests of the broadest people is to become a starting point and a stopover point in all work, ensuring “three serves”: serving the bigger picture of Party and State work, serving the grass roots and the masses, and serving the broad legal scholars and legal workers. We must closely revolve around the issues that correspond to the popular masses’ interests in rule of law building, organize legal scholars and legal workers to research these deeply and put forward counter-policy advice to the Centre. We must fully give rein to the advantages of broad connections and the galaxy of talent, organize and mobilize the broad legal scholars and legal workers to vigorously participate in the work to prevent and dissolve contradictions and disputes, and participate in risk assessments for major policy decisions of the government. We must strengthen communication and contact with grass-roots common legal scholars and legal workers, listen to their aspirations, understand their opinions and demands, and grasp their implementation one by one.
IV, Leading cadres taking the initiative is crucial
Comrade Xi Jinping pointed out that all levels’ leading cadres must take the lead in handing affairs according to the law, take the lead in respecting the law, and keeping reverential mind towards the Constitution and the law, and closely establish the concept that the red line cannot be touched and the legal baseline cannot be transgressed. All levels’ organization departments must make their ability to handle matters according to the law and to respect the law into important conditions for observing and distinguishing cadres. It is necessary to strengthen restraints and supervision on the use of power, to lock up power into a cage of rules, and to shape punitive institutions that don’t dare to be corrupt, preventive mechanisms that cannot be corrupt, and guarantee mechanisms that are not easily corrupted. No person has absolute power outside of the law, any person must serve the people, be responsible towards the people and consciously accept the supervision of the people when exercising power. These important elucidations stressed the crucial function of leading cadres in taking the lead in rule of law building, they have revealed the basic path to restrain and supervise power, and indicate new heights and new frontiers for our Party’s governance concepts.
Leading cadres taking the lead in respecting the law is the key to build a rule of law China. “Taking the lead” is reflected in even higher standards, even stricter requirements and even more practical work styles. All levels’ leading cadres are the concrete implementers of Party and State policies and laws, represent the image of the Party and the country, and their every word has a huge demonstrative effect on common cadres and the masses. Only if State organs and their work personnel, and especially leading cadres, take the lead in abiding by the law, and use the law to restrain their own activities, can it be possible for the law to be enforced equally, for the spirit of the rule of law to manifest itself, and can a belief in the rule of law be moulded. The thing that is most likely to have a guiding rule towards the masses, are the real actions of State organs and leading cadres. The eyes of the masses are bright as snow, when the use of power is not consistent with legal provisions, what people respect is not the law that is written on paper, but the real rules of the use of power. Regardless of however perfect legal provisions are, as long as power overrides the law in reality, the people will believe in power and not believe in the law. We must earnestly rethink and thoroughly correct places where the acts of officials and the provisions of the law are inconsistent, and strictly control power to remain on the track of the law. Only in this way can the people emulate their betters, and must they not be warned to follow a bad example.
Persist in opposing and overcoming privileged thinking and phenomena of privilege. Privilege is the ideological source and an important condition for engendered by corruption. Many leading cadres who break the law and believe that their own is related to the fact that they don’t understand the law, but in fact, what they lack isn’t knowledge about the law, but reference for the law. In their hearts, power is bigger than the law, and they didn’t think that these laws, one day, might truly be used on themselves, they mistakenly believed that as long as one has power in one’s hand, that once can decide whether or not the law is enforced. Comrade Xi Jinping stressed that anti-corruption and clean government construction must oppose thoughts and appearances of privilege. Strict punishment of corruption not only requires “hitting tigers” and “hitting flies” one by one, it is even more necessary to destroy the privileged thoughts behind corruption. Communist Party members eternally are ordinary members of the labouring people, apart from individual interests and work duties within the scope provided by laws and regulations, all Communist Party members are forbidden to seek any private interests and privileges. To prevent that a number of cadres change their public power into privilege and the abuse of power for personal gain, we must strengthen norms and restraints for the use of power, restrain power with power, restrain power with rights, and expand punishment strength for acts of privilege. At the same time as perfecting institutional construction, leaders must also firmly establish a consciousness that there are no exceptions in the face of rules deep in their heart, and not let power “avoid seniors”, before it is possible to eradicate the soil in which thoughts of privilege breed, guarantee that those in high position do not usurp power, and those with great power do not seek private gain.
(The author is the Party Secretary and Standing Vice-Director of the Law Society of China)