Jiang Ping, lifelong Professor of the China University of Political Science and Law, and a leading scholar in the field of Chinese law, makes a speech on the rule of law in China over the past thirty years in the National Library of China, October 25, 2008.
"Two steps forwards and one step back", has been the theme for the rule of law in China over the past 30 years. Progress has not been smooth, but it is moving in the right direction, according to Jiang.
The term of "rule of law" was officially used in 1979 for the first time when the famous "No. 64 Document" was released by the CPC (the Communist Party of China) Central Committee to ensure the implementation of the Criminal Law and the Criminal Procedure Law. Since then, the rule of law has been one of the key themes in national development.
"Tracing the rule of law in China over the past thirty years, we can follow four main themes, these being: rule of man and rule of law, national centralization and social self-government, public right and private right, and rule by law and rule of law," said Jiang Ping.
"Rule of man" and "rule of law"
First principles involve the move from rule of man to rule of law. From the very start of reform and opening-up, Deng Xiaoping, a brilliant leader in the shaping of modern China and an architect of China’s reform and opening-up, attached great importance to this theme, whose principle is that the fate of a country is not controlled by one person, but by a system, and that system is the law. Only a secure system can ensure that national policies cannot be changed by the individual, which is the key difference between rule of man and rule of law.
The fundamental principle here is that no individual should be above the law. Even the CPC and the government have to operate within the confines of the Constitution and other laws.
The relationship between man and law has been well defined as follows: “There must be laws to direct behavior, these laws must be observed and strictly enforced, and lawbreakers must be prosecuted.” Although the past thirty years bear witness to the fact that in most cases this principle applies, the remains of “rule of man” are still evident. In this context, two issues are particularly prominent.
One is how to improve law-based administrative governance. Where there is power, there should be supervision. Efforts have to be made to ensure that political and administrative power is restricted and supervised by laws.
The other is a large number of informal local norms and policies. These tend to deviate from official rules and hence present a significant challenge to the rule of law.
National centralization and social self-government
Reform and opening-up has given society more right of self-government. Its achievements can be clearly seen in the reform of state-owned enterprises, where enterprises have been endowed with more right of self-government.
Previously, too much state intervention indicated that laws were just tools of state enforcement. Nowadays, more and more social self-government proves that laws are actually tools for social justice. In one sense, this is a significant evolution in people’s concept of the law.
But in spite of this, there are still wide areas that need to be brought into the concept of social self-government, including universities and hospitals, where administrative or state-power intervention is still prominent. Social groups also need to be empowered to implement social rights, such as environmental protection and consumer protection.
To transform the functions of the state into those of society will represent an important change in the functioning of government. A "restricted" government will thereby take shape, with limited functions and rights.
Public right and private right
Another important progress is the extension in private rights, although conflicts between public and private rights are still intense. To give it a precise definition, “private” here refers to privately-owned enterprises, private property and individual rights.
Last year, the Real Right Law of the People’s Republic of China was approved. It emphasizes that the protection of private property is as important as protection of national property.
However, arguments about infringements are still widespread. Take as an example the present traffic-restriction policy in Beijing, which aroused considerable public dispute. In one sense this is a clear infringement of private rights; however, it serves to improve the city’s air quality, which is also a clear public interest.
Moreover, some “secondary” infringements are also worthy of note. Under the socialist market economy, there has been a greater ability to match supply and demand of private products; however, the supply of public products, including education, medical care, and social security, is controlled by national budgets. If these are not well-managed, the result can also be termed a government “infringement” of private rights.
The key to resolving conflict between public and private rights is to establish a mechanism to restrict and supervise public rights.
"Rule by law" and "rule of law"
The leap from "rule by law" to "rule of law" is quite significant. Unlike the above three themes, this did not start at the very beginning of reform and opening-up, but when the “rule of law” was added to the Constitution in 1999 and later, when “human rights” were also included in the Constitution in 2004.
"Rule by law" applies to the structure and processes of the legal system, while "rule of law" is a philosophy, whose core value is to protect human rights. It aims to give people more freedom and establish a democratic political system.
Democracy and human rights are two important elements of "rule of law". Although progress has been made over thirty years, there is still a lot to do.
Generally speaking, the "rule of law" in China has developed along a curve. All the way, progresses and setbacks have accompanied one another, but the overall picture has been one of progress, as reform and opening-up continues to mature.
(China.org.cn by Wang Wei October 31, 2008)