Justice and fairness with Chinese characteristics: Seeking Truth on the rule of law

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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 prioritiseneither 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)

谈谈法治中国建设
——学习习近平同志关于法治的重要论述
党的十八大以来,习近平总书记站在党和国家前途命运的战略高度,提出建设法治中国的奋斗目标,并就法治建设发表了一系列重要论述,为加快建设社会主义法治国家进一步指明了方向和道路。讲话内涵深刻、务实创新,饱含着以人为本、心系人民的真挚情感,为推进法治中国建设提供了强大的理论指导,标志着社会主义法治国家建设迈入了新的历史阶段。
一、让法治成为一种全民信仰
2013年1月,习近平同志就做好新形势下政法工作做出重要指示,首次提出建设法治中国的宏伟目标。中国特色社会主义法律体系的形成,总体上解决了有法可依的问题,但法治建设依然任重道远。法律不能只是纸上的条文,而要写在公民的心中,使法治成为一种全民信仰。习近平同志指出,要在广大干部群众中树立法律的权威,使人们充分相信法律、自觉运用法律,形成全社会对法律的信仰,弘扬法治精神,培育法治文化,在全社会形成学法尊法守法用法的良好氛围。这对于加快建设社会主义法治国家具有重大而深远的意义。
法治信仰引领法治中国建设。法治信仰,是发自内心地认同法律、信赖法律、遵守和捍卫法律。一旦法治成为一种信仰,人们就会长期持续、自觉自愿地遵守法律,把依法办事当成自己的生活习惯。法律只有被信仰,成为坚定的信念,才能内化为人们的行为准则。随着国家法治建设的深入,我们的法律条文越来越完善,人们对法律知识的了解越来越丰富,但为什么立法、执法、司法、守法中还有许多深层次的问题?为什么法律悬空、制度空转现象依然存在?原因就在于对法治的信仰没有真正树立。对于执政者来说,法治信仰是法治思维和法治方式的基础。只有对法治有着发自内心的信仰,才有可能形成法治思维,才能主动、自觉和善于运用法治方式。对于一般公民来说,法治的根基在于人民发自内心的拥护,法治的伟力在于人民真诚的信仰。只有努力把法治精神、法治观念熔铸到人们的头脑中,形成办事依法、遇事找法、解决问题用法、化解矛盾靠法的习惯,法治才能源源不断地释放出规则的正能量。习近平同志把法治上升到信仰的高度,抓住了法治中国建设的最核心问题,凸显了法治信仰在法治中国建设中的引领作用,具有鲜明的时代特色和重大的现实意义。
在法治实践中培育法治信仰。对法治的信仰需要在科学立法、严格执法、公正司法、全面守法的具体实践中逐渐积累形成。人民群众对法治的信仰不会凭空而来,让人民群众信仰法治,首先要让他们切实感受到法律能够有效地发挥作用,信仰法治能够给他们带来实实在在的好处。习近平同志强调:“我们要通过不懈努力,在全社会牢固树立宪法和法律的权威,让广大人民群众充分相信法律、自觉运用法律,使广大人民群众认识到宪法不仅是全体公民必须遵循的行为规范,而且是保障公民权利的法律武器”。这就要求立法必须真正反映公众的利益和诉求;要求执法机关、司法机关在老百姓需要保护他们合法权益的时候,能够依法办事,为他们主持公道。从而使人们相信,只要是合理合法的诉求,通过法律程序就能得到合理合法的结果。当人们从一个又一个的执法、司法过程中感受到了公平正义,获得了切实帮助,对法律的信仰自然就会在人们心中、在全社会建立起来。当法治成为全社会的普遍信仰时,法治国家才能实现。
二、以严格执法为重点全面推进法律实施
习近平同志高度重视执法问题,强调“法律的生命力在于实施”,明确指出立法机关、行政机关、司法机关和广大公民在法律实施中的地位和作用,要求行政机关带头严格执法,提高各级领导机关和领导干部运用法治思维和法治方式的能力,加强对执法活动的监督,坚决排除对执法活动的非法干预。
法律实施成为法治中国建设的主要矛盾。落实依法治国基本方略,加快建设社会主义法治国家,必须保证宪法和法律的全面有效实施。维护宪法和法律的权威,就是维护党和人民共同意志的权威。捍卫宪法和法律的尊严,就是捍卫人民共同意志的尊严。保证宪法和法律的实施,就是保证人民根本利益的实现。目前我国法治建设中面临的主要问题,大多数存在于法律实施领域,如保证宪法和法律实施的监督机制和具体制度还不健全;关系人民群众切身利益的执法司法问题还比较突出;一些公职人员滥用职权、失职渎职、执法犯法甚至徇私枉法严重损害国家法制权威;公民包括一些领导干部的宪法和法律意识还有待进一步提高。对此,习近平同志要求,“必须加强宪法和法律实施,维护社会主义法制的统一、尊严、权威,形成人们不愿违法、不能违法、不敢违法的法治环境,做到有法必依、执法必严、违法必究。”通过宪法和法律的全面实施,实现从“法律体系”向“法治体系”的转变。
严格执法是法律实施的重中之重。在我国,有80%的法律法规是由行政机关执行的。习近平同志指出:“行政机关是实施法律法规的重要主体,要带头严格执法,维护公共利益、人民权益和社会秩序。执法者必须忠于法律,既不能以权压法、以身试法,也不能法外开恩、徇情枉法。各级领导机关和领导干部要提高运用法治思维和法治方式的能力,努力以法治凝聚改革共识、规范发展行为、促进矛盾化解、保障社会和谐。”对执法者的要求从单纯地严格执法,上升到对法律的忠诚和运用法治思维、法治方式能力的提高上,这就抓住了问题的关键。目前执法领域存在的一些突出问题,如强势执法、趋利执法、选择性执法、随意执法等,根源就在于一些执法者对法律、法治缺乏发自内心的尊崇和忠诚。只有确立了对法律的忠诚,执法犯法的问题才能从思想源头上得到彻底解决。同时,还要加强对执法活动的监督,坚决排除对执法活动的非法干预,坚决防止和克服地方保护主义和部门保护主义,坚决防止和克服执法工作中的利益驱动,坚决惩治腐败现象,做到有权必有责、用权受监督、违法必追究。
三、更加重视人民在法治建设中的主体地位
人民群众是法治中国建设的主体,人民群众满意是衡量法治中国建设的最终标准。习近平同志指出,人民对美好生活的向往,就是我们的奋斗目标;要随时随刻倾听人民呼声、回应人民期待,保证人民平等参与、平等发展权利,维护社会公平正义;要以最广大人民利益为念,坚持司法为民。这些重要论述,体现了以人为本的执政理念,也使法治中国建设拥有广泛而深厚的群众基础。
把实现好、维护好、发展好最广大人民根本利益作为法治建设的目标。坚持和尊重人民的主体地位,首先体现在切实保障人民的宪法、法律权利上。习近平同志指出:“只有保证公民在法律面前一律平等,尊重和保障人权,保证人民依法享有广泛的权利和自由,宪法才能深入人心,走入人民群众,宪法实施才能真正成为全体人民的自觉行动。”要提高立法科学化、民主化水平,完善立法工作机制和程序,扩大公众有序参与,充分听取各方面意见,使法律准确反映经济社会发展要求,更好协调利益关系。要坚持司法为民,改进司法工作作风,通过热情服务,切实解决好老百姓打官司难问题。这就要求我们树立以人民为中心的工作导向,始终把人民放在心中最高位置,将党的群众路线贯彻到立法、执法、司法的各个环节中去,坚持联系群众、贴近群众、依靠群众、服务群众。
把依靠人民参与作为法治建设的基本方式。群众对自身利益最关切,对矛盾纠纷产生的原因、存在的症结最清楚,解决起来最有智慧。习近平同志要求,要把“枫桥经验”坚持好、发展好,善于运用法治思维和法治方式解决涉及群众切身利益的矛盾和问题。要创新工作方法,把群众路线和法治思维结合起来,紧紧依靠基层组织和广大群众预防化解社会矛盾,让群众自己组织起来通过法治方式解决自己的问题。坚持科学决策、民主决策,使政策制定的过程成为倾听民意、化解民忧、赢得群众支持的过程。要充分依靠人民群众,自觉接受人民群众监督,实行专门机关和群众参与相结合,坚持走群众路线。要加大司法公开力度,最大限度地增加执法透明度,保障当事人和人民群众的知情权、监督权,回应人民群众对司法公正公开的关注和期待。完善人民陪审员、人民监督员制度,拓展人民群众有序参与司法的途径。要通过制度设计赋予并切实保障当事人及其代理人充分的程序权利,对司法权力运行形成有效的制约监督机制。
把人民满意作为检验法治建设成效的根本标准。立法、执法、司法机关必须坚持以人民满意为目标,不断提高人民群众的认同感和信任度。习近平同志指出,所谓公正司法,就是受到侵害的权利一定会得到保护和救济,违法犯罪活动一定要受到制裁和惩罚。只有人民群众通过司法程序能够保证自己的合法权利,司法才有公信力,人民群众才会相信司法,法律才能真正发挥定分止争的作用,司法裁判的终局性作用才能实现。人民是司法工作全部价值的最终评判者。习近平同志强调:“要努力让人民群众在每一个司法案件中都感受到公平正义。”落实这一司法工作目标,一方面,要注重个案的公平正义。从提高每一个具体案件的办案质量做起,通过成千上万个个案的公正处理,积攒起人们对司法公正的整体信赖。坚决防止冤假错案,一个具体案件的不公正处理就是对公平正义的一次具体伤害。另一方面,要注重公平正义的可感受性,全面落实司法公开,加大程序法律的执行力度,使司法公正以人民群众感受得到的方式得以实现。要进一步提高群众工作能力,法律不应该是冷冰冰的,司法工作也是做群众工作。司法工作者要密切联系群众,如果不懂群众语言、不了解群众疾苦、不熟知群众诉求,就难以掌握正确的工作方法,难以发挥应有的作用。群众工作能力是司法能力的重要组成部分,要建立法官、检察官深入基层、联系群众机制,使司法人员在为民实践中不断提高境界、汲取力量、提升能力,真正把司法工作做到群众心坎上。
中国法学会作为党领导的人民团体,是党和政府联系广大法学法律工作者的桥梁和纽带,肩负着繁荣法学研究、推进依法治国、建设法治中国的重要职责。法学会的工作同样要树立正确的群众观,把实现好维护好发展好最广大人民根本利益作为一切工作的出发点和落脚点,做到“三个服务于”:服务于党和国家的工作大局,服务于基层和群众,服务于广大法学法律工作者。要紧紧围绕法治建设中与人民群众利益息息相关的问题,组织法学法律工作者深入调研,向中央提出对策建议。要充分发挥联系面广、人才荟萃的优势,组织动员广大法学法律工作者积极参与矛盾纠纷预防化解工作,参与政府重大决策法律风险评估。要加强与基层普通法学法律工作者的沟通联系,倾听他们的心声,了解他们的意见和要求,并一项一项地抓好落实。
四、领导干部带头是关键
习近平同志强调,各级领导干部要带头依法办事,带头遵守法律,对宪法和法律保持敬畏之心,牢固确立法律红线不能触碰、法律底线不能逾越的观念。各级组织部门要把能不能依法办事、遵守法律,作为考察识别干部的重要条件。要加强对权力运行的制约和监督,把权力关进制度的笼子里,形成不敢腐的惩戒机制、不能腐的防范机制、不易腐的保障机制。任何人都没有法律之外的绝对权力,任何人行使权力都必须为人民服务、对人民负责并自觉接受人民监督。这些重要论述,强调了领导干部带头在法治建设中的关键作用,揭示了制约监督权力的基本路径,表明我们党治国理念的新高度新境界。
领导干部带头守法是建设法治中国的关键。“带头”体现的是更高的标准、更严的要求、更实的作风。各级领导干部是党和国家政策法律的具体执行者,代表着党和国家的形象,其一言一行对一般干部和群众有着巨大的示范效应。只有国家机关及其工作人员特别是领导干部带头遵守法律,用法律约束自己的行为,法律才有可能得到平等执行,法治精神才能得以彰显,法治信仰才能得以塑造。最有可能对公众产生引导作用的,是国家机关和领导干部的实际行动。群众的眼睛是雪亮的,当权力运行与法律的规定不一致时,人们注重的不是写在纸上的法律,而是权力运行的实际规则。不管法律规定得有多么完备,只要权力实际上凌驾于法律,人们就会信奉强权、不信法律。要认真反思和彻底改正官方行为与法律规定不一致的地方,把权力严格控制在法律的轨道上。只有这样,人们才会见贤思齐,而不是以儆效尤。
坚决反对和克服特权思想、特权现象。特权是腐败产生的思想根源和重要条件。许多违法犯罪的领导干部认为自己犯罪与不懂法有关,事实上,他们缺乏的不仅是法律知识,而且是对法律的敬畏。在他们心中,权比法大,没有想到这些法律有一天会真的用到自己身上,以为只要自己手中有权就可以决定法律是否执行。习近平同志强调,反腐倡廉建设,必须反对特权思想、特权现象。惩治腐败不仅要一个一个地“打老虎”、“打苍蝇”,更要打掉腐败背后的特权思想。共产党员永远是劳动人民的普通一员,除了法律和政策规定范围内的个人利益和工作职权以外,所有共产党员都不得谋求任何私利和特权。要防止一些干部把公共权力异化为以权谋私的特权,必须加强权力运行的规范和制约,以权力制约权力、以权利制约权力,加大对特权行为的惩罚力度。在完善制度建设的同时,也需要领导者在内心深处牢固树立制度面前无例外的意识,不让权力“为尊者讳”,才能从源头上铲除滋生特权思想的土壤,保证位高不擅权、权重不谋私。
(作者:中国法学会党组书记、常务副会长)

2 thoughts on “Justice and fairness with Chinese characteristics: Seeking Truth on the rule of law

    […] 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… from China Studies at Leiden University https://chinacopyrightandmedia.wordpress.com/2014/01/12/justice-and-fairness-with-chinese-characteris… […]

    文不鸣 (@lawwengb) said:
    January 13, 2014 at 1:06 pm

    The comments in the beginning plays out more insightful than the quoted article, as I would say. The three aspects of rule of law all without no exception finds their particular difficulties in China’s current political-legal framework. The first element, the autonomy of law itself rather the instrumental use of law for whatever other purposes clearly reaches the root of the Chinese legal reform. While the under-publicity of law would then be understandable since law is only meant to be the ‘rule on the table’ with other sources of rule tolerated to float beneath. For the last element of legal-social perspective, it is true to say that the party ideology would presume the all-better-off ends in dispute-solving, which as this comment provides is unrealistic and unreasonable, but brings about the unwillingness to admit the existence of social tensions resulting mostly from the uneven distribution of reform benefits and the then commitments to maintain the belief that ‘stability overrides everything’.

    It would work well as a brief introduction of the inner logic of Chinese law and society for those who wish to get a first accurate impression. Great writing!

    But for unskilled readers like me, the line of Hamlet and French proverbs require extra work with wiki.

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