About China: The Rule of Law in Society

The Rule of Law in All Aspects of China's Changing Society

China has always extolled the concept of good governance, but such governance was not based on the concept of the "rule of law" but on the "rule of man", and was mostly understood to mean "good government". This deep-rooted tradition still engenders a powerful cultural resistance to the implementation of the rule of law at all levels, but reform efforts are underway to give the rule of law growing significance as it touches on all aspects of China's changing society.

During the period of the centrally planned economy the resulting social structure left little room for law to play a significant role. In a society with no private property, labour as pieces on a one-sided chessboard, and individuals allocated no more economic resources than required to meet their basic needs, there was no need for a civil law. In a society where all economic activities were organised and managed by the government and where economic entities were seen as players in state operations, economic laws were not needed. In a society where the government is all encompassing there was no soil for administrative laws to take root as government rules and regulations took their place. Under the philosophy that the government represents the people, internal government procedures regulated conflicts between the government and the individual, not laws.

Today, the socio-economic reform in China, especially since 1978, requires good governance based on reliable legal structures and institutions. During the transition to a socialist market economy, government with transparency and accountability in the management of state affairs is indispensable. In this regard, the rule of law and a clear-cut legal system are the means to achieve this transparency, as well as being the foundation for all other sectors of society to develop in a way that guarantees fairness, equity and justice and predictability in terms of due process in cases of conflicts and controversies.

In 1997, the government announced the goal of governing the country according to law and building up a socialist country with the rule of law. This commitment by the ruling party is considered a significant political milestone. It is the first recognition at senior levels that the modernization of China depends on laws rather than programmes or policies or plans. In March 1999, the National People's Congress (NPC) included the concept of rule of law into China's constitution.

Based on these commitments and the constitutional rights now enshrined, there is still a long way to go. For example, general elections are held regularly in China, but only in rural areas at the village level. Free expression, association and assembly are guaranteed by the constitution, but administrative practices are often still governed more by considerations of control than the requirement to maintain this right. The Criminal Procedure Law was revised in 1996 to state that "no person shall be found guilty without being judged as such by a people's court according to law", but old practices, which did not clearly separate the functions of the judge, the procurator and the defence counsel, and giving the judge an independent and impartial status, are hampering the implementation of these new procedures. The institutional dependence of the People's Courts on local government makes it difficult to gain the critical distance from political and other pressures in adjudicating independentlyand impartially the law in each case.

Governance Processes

Every civil servant in China has to become conversant with the idea of administrative power being exercised according to law. This could be achieved through the updating of codes of conduct and the related updating of training programmes for civil servants. Particularly relevant would be that not only civil servants but also the general public at large would have access to information on policy/decision making processes, become aware of the meaning of the Rule of Law, and be indirectly involved in its implementation.

Legislation
The increase in legislative action over the last 20 years is impressive. Now, increased attention has to be paid to the quality of legislation, i.e. the standard setting and the regulations which will create anenabling environment for all parts of society to participate in the economic and social changes. Greater consultation with experts and those ultimately concerned with the implementation of the law would be essential. Already, a system of checks and balances is in operation, as the executive branch of the government and the NPC closely consult on major issues with the CPPCC. It is important thatboth the capacity of legislative bodies and training for legislators are strengthened to enhance their understanding of the significance and effects of the laws they enact.

Law enforcement
The law must be seen to work fairly and the discrepancy between the gradual perfection in legislature and the weakness in law enforcement is a serious problem. According to the law, once a court ruling is issued, all relevant parties must enforce the ruling automatically. However, it is common today that many court rulings are either not enforced at all or enforced with much delay. Therefore, it is important to strengthen the enforcement capacities of the court system. Coupled with this is the need that other entities support Government law enforcement activities. For example, the Government could consult with non-governmental, non-profit organisations which could act as impartial monitors or watchdogs, on industrial pollution for example. The Government would then steadily accumulate enough appropriate information to guide suitable improvements to future legislation.

Basic services

Rule of law is a structure as well as a value system. There is a danger if rule of law is taken only as a means of social control. The values underpinning the concept of rule of law are vital. More resources are needed to undertake legal and human rights education especially at the community level, enabling people not only to know the rules but also to use the rules to exercise their rights and protect themselves. Government supported Legal Aid Associations are now available in all provinces and could play an important role in this initiative

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