Dameisha Forum/Forum Opinions/Xiao Yang: Rule by the Constitution as the Solution to China’s Challenges

Xiao Yang: Rule by the Constitution as the Solution to China’s Challenges

Author: Source: Date:2017-09-01
Respected guests and friends,

Decision of the CCCPC on Some Major Issues Concerning Promoting the Rule by the Constitution released at the 4th Plenary Session of the 18th CPC Committee proposed the idea—the Rule by the Constitution for the first time in the history of the Party. This session lighted the fire in the heart of people and the Party, and is well supported and received by people domestic and overseas. As cheered by the public, in a winter the spring of the rule by law finally comes.  

People in China has experienced several stages since the Reform and Opening-up, including the development of socialistic democracy proposed in the 3rd Plenary Session of the 11th CPC Committee in 1978, the establishment/improvement of socialistic legislation system so that “there must be laws to go by, the laws must be observed and strictly enforced, and lawbreakers must be prosecuted”, and the establishment of the rule by law and the plan to build China to a socialistic country released at the 15th National People’s Congress (NPC) in 1997. People also saw the implementation of the general plan of the rule by law established at the 16th NPC in 2002, which was included in the key mission of “building the well-off society in an all-round way”; the initiative to further build China to a socialistic country proposed in the 17th NPC in 2007, and “the rule by law” proposed at the 18th NPC in 2012 when the idea was set as the fundamental mode of China’s governance and administration. 

President Xi Jinping solemnly stated that “the rule by the Constitution shall be part of the first step of the rule by law” at the 30th Anniversary of China’s Constitution, just 20 days after he was elected as the General Secretary of the CPC in November, 2012 in the 1st Plenary Session of the 18th CPC Committee. He reiterated that the Constitution is the very base of all the other laws. It is superior to any other legal concepts. This interpretation has promoted “the rule by law” to a higher level. President Xi’s speech made us confident about the future of the rule by law, work hard for economic growth, politics for common people, promising culture, social justice, good ecological environment and peaceful development for the rise of China.

I hardly delivered speech on such occasion since I retired in March, 2008. The 4th Plenary Session of the 18th CPC committee was an exciting event to me, and I decided to accept the invitation to express my passion for the rule by law in China. I would like to share with you about what I learned from the 4th Session on today’s Dameisha China Innovation Forum, President Xi’s interpretation on the rule by the Constitution and his insights on other areas. 

Here I would like to share four of my views.

First, the highlight on the rule by law is to correctly understand what it means. President Xi used to highlight the above idea on many occasions after the 18th NPC, which helped clear out chaotic thoughts and end the debate on the rule by people over the rule by law, and the doubt on which should go first, power or law. The 4th Session has deepened and promoted people’s understanding of the rule by law. It is a breakthrough in theory, and a transition in governance philosophy. It encourages the Party and all Chinese people to explore regardless difficulties, wake up and proceed in practice. His interpretation has great historic and realistic implications.

The rule by the Constitution proposed at the 18th NPC enriches the philosophy of the rule by law. A number of proposals and expectations including “the rule by law and the law-ruling China” proposed at the 3rd Plenary Session of the 18th NPC, “simultaneous promotion of rule, governance, and administration by law”, and “building the law-based country, government and society”. These have clearly enriched the connotation of “the rule by the Constitution and to rule China by law”. China will not only highlight institutional improvement but also the cultural development, blazing a trail by borrowing the experiences the country gained from its past, and the practices it learned from foreign countries, and making it a socialistic law-based path with Chinese characteristics. 

The idea of the rule by the Constitution since the 18th NPC promoted the position of “the rule by law” to a new level. Decision of the CCCPC on Some Major Issues Concerning Comprehensively Deepening the Reform approved at the 3rd Plenary Session and Decision of the CCCPC on Some Major Issues Concerning Promoting the Rule by the Constitution promoted at the 4th Plenary Session specified the rule by law being the new goal of China’s legal construction and the critical part of its further reform. The rule by the Constitution is confirmed as the first step of the rule by law. The law-based China is going to be an essential part of the “China Dream”. The government is going to further improve its legal system with Chinese characteristics, accelerate the judicial reform, ensure more normalized administration and enforcement, and guarantee the compliance with both the Constitution and other Chinese laws. In short, we are going to make our country legally strong.

Second, to highlight the rule by the Constitution means to raise the nation’s capability of the rule by law. The idea at the 18th NPC requires to more voluntarily engaging in governance based on the Constitution. We have been prioritizing and carrying out the principle of “there must be laws to go by, the laws must be observed and strictly enforced, and lawbreakers must be prosecuted” proposed at the 3rd Plenary Session of the 11th CPC Committee since the Reform, and the practice by far proved the decision is wise, correct and meet the country’s practical needs. Today, the CPC committee led by President Xi enriched the principle in 16 Chinese characters as “science-based legislation, strict enforcement, fair judicature and nationwide compliance”, which greatly improved the previous one. Here the word “law” contains China’s constitution and the laws approved by the NPC and its standing committee, including the regulations released by the State Council and government at all levels, the rules approved by local NPC and local governmental entities, and the interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate on applicable laws, etc.

The laws approved by legislation, administrative and judicial entities have to be practical and science-based. The sound laws need to be supported and the less sound ones to be corrected. Therefore, we hold that the science-based laws must be compliant with the Constitution, be advocated by people and meet the country’s demand. The science-based laws are sound laws, and the science-based legislation procedures are provided for the soundness and quality of laws, regulations and rules. The 16-character principle proposed aims at better quality and value. The state’s strategy targets at replacing the rule by people with the rule by law and approving good and sound laws. Therefore, the statement above is more advanced, science-based with better social effect. The real rule by law and the socialistic goal with Chinese characteristics will be soon realized.  

Strategy here includes direction, approach and tactic. Therefore, strategies for a country are like “developing the country through science and education”, “making the nation stronger through talent development”, “sustainable development”, and “building harmonious society”. However, the word was for the first time included in the Constitution in 1999, which was “to rule the country by law and build China to a socialistic and law-based country”. As we know, the direction determines the path, and the path determines the fate, and that is why the rule by law as the national strategy is so vital. 

In 2007, I wrote an essay titled the Launch, Forming and Development of the Rule by Law as China’s Fundamental Strategy for its 19th anniversary, elaborating the difficulty in proposing, sticking to formulate it and carrying it out in China. President Xi at the 4th Plenary Session of the 18th CPC Committee released “Decision of the CCCPC on Some Major Issues Concerning Promoting the Rule by the Constitution” based on by far how well the rule by law is implemented in China. As he pointed, “there is still a lot of work to do for fully carry out the rule by law, and there must be a core as direction that leads all the forces to move on. This core shall be the idea to build the socialist legal system with Chinese characteristics, and all the tasks must center on the core to be planned and executed without deviation.”

To build the socialistic legal system with Chinese characteristics and to achieve the goal of building China to a socialistic law-based country were proposed at the 4th Plenary Session of the 18th CPC Committee. This is considered as a great, solid and comprehensive concept including all the items regarding the above mentioned legal system like the rule by law, legal system and operation, legal order/supervision and talent development. In addition, we need to build the litigation procedures, and to create the legal system with the Constitution as the core, the efficient and authoritative enforcement system, the established and powerful supervision system, the sufficient and practical security system, and the special regulation system for the Party. These five systems are designed to fully carry out all the tasks and measures for the rule by the Constitution and the rue by law. 

Third, the rule by the Constitution must be realized by carrying out the legal measures specified in the Constitution. The vigor of the Constitution depends on execution, which accounts for 70%, while the deployment accounts for only 30%. The establishment of the rule by law as the national strategy and the formation of the legal system indicate what our country experienced in legal system building. China lacks no laws. The NPC and its standing committee have jointly formulated 243 laws by far. The prevailing laws developed by the State Council are over 680, and the local and departmental regulations are more than 8,000. It took us over 30 years to finish the legislation procedure that took western countries more than three centuries. We are now definitely a big nation with legal system, but not a country legally strong yet. Our legal system needs to be further improved. We have to finish compiling the Civil Law, and thoroughly remove and abolish the laws and regulations released in the period of central planning, class struggle and mass movement. The prevailing Constitution of China is considered a law that is well structured in civil rights, national welfare and people’s livelihood and improvement of state entities with strict enforcement procedures. Yet there is still some space for further improvement in setting up effective constitutional system for balance of constitutional right resources, and this requires the transition from the general legal system to a system based on the rule by law.

Recently the NPC standing committee decided to set up the Constitution Day, and also the “Oath Procedure”, and for this, I cannot agree more, as it will help raise citizen’s awareness. I wrote six articles regarding constitution issues during the ten years when I was the head of the Supreme People’s Court, including The Compliance with the Constitution, The Rule by the Constitution, The Authority of the Constitution, The Spirit of the Constitution, and The Enforcement of the Constitution, etc., which were released on newspaper on each December 4. I believe that the day when this system is set up would be the day when a real law-based China is built.

To build the enforcement and supervision system, to improve the Constitutional supervision system released by the NPC and the standing committee, and to perfect the constitutional interpretation mechanism proposed at the 4th Plenary Session are considered critical targeting at key issues. The first constitution of China was released in 1954, known as the Constitution 1954, and the prevailing Constitution was formulated over 30 years ago. However, by far there are still a lot of violations that hindered or even ignored the provisions of Constitution. Such violations are frequent. It is disrespect to the Constitution and other laws. We believe that the most serious damage to the Constitution and the rule by law is the less timely investigation and correction.

Investigation and penalty for constitutional violation is much more valuable than repeated education on constitutional provisions. To raise the awareness of Chinese people on the Constitution and the rule by law, we have to further improve the mechanism, perfect the constitutional interpretation procedures, review the legitimacy of legal texts, and investigate violating cases by either entity or individual to prohibit any behaviors against the Constitution or laws. In addition, a constitution committee may be established in the NPC to take care of amendment, interpretation of the Constitution, and to promote the fundamental issues specified in the Constitution, handle cases that undermine the state and its people, punish the violators, protect law-abiding people, and bring the constitutional spirit to everyone’s mind, and carry out the constitutional provisions for practicing the “rule by the Constitution” in China.

Fourth, to highlight the rule by the Constitution means the fair judicature and the maintenance of justice and impartialness. Judicature as the last defense of justice is the ultimate guarantee of sound laws. The results of the science-based legislation will be carried out and maintained, and the awareness of compliance will be instructed and enhanced by judicature. The Decision released at the 4th Plenary Session pointed that fairness is the lifeline of the rule by law, and fair judicature plays the key role in promoting social justice. Unfairness is mortally destructive to justice. Therefore, we have to ensure fair judicature. As instructed by the CPC committee, we need to carry out the tasks under the judicial reform. The NPC and the standing committee shall at the proper timing start the amendment on the Constitution and relevant laws, improve the judicial administration system and judicial power mechanism to guarantee fair judicature and better reputation. 

The institutional design in independent and fair enforcement of judicial power and procuratorial power are proposed at the 4th Plenary Session:

1. Require the Party organizations and its officials to take the lead to support judicial entities to perform their duties fairly and independently; set up the recording, reporting and investigating system against official’s intervening enforcement; for such intervention, discipline punishment shall be given; for those that resulted in wrongly judged case, the people involved shall be investigated for criminal liabilities. 

2. Improve the mechanism that supports “appearing in court”, encourage court to hear administrative case, and respect the verdict by executive court.

3. Set up and improve the protection mechanism for judicial official to perform duties, as such mechanism will help remove factors that intervene independent exercise of judicial power and procuratorial power in the long run. 

Therefore, the judicial system, by ensuring the judicial authority and improving its public reputation, shall further emancipate mind to grab the good timing for development, and release the reform plan timely and firmly carry out the reform measures without violating the judicial requirements and delaying the timing. The judicial system shall take actions with strong willpower under the leadership of the CPC committee and further promote reform. It shall fully carry out the spirit of the 4th Plenary Session, ensure the idea and the institutional mechanism of the Constitution to be carried out, build the impartial, efficient and authoritative socialistic judicial system, and ensure the judicial power and procuratorial power to be exercised according to law independently and fairly. 

As a man working in security, procuratorate, court and judicial and administrative departments for several decades, I was lucky to witness many key moments of China’s legal development. The history shows that the rule by law is the inevitable trend and the path to it is not easy. I believe the best solution for socialistic country’s governance is the rule by law and the rule by the Constitution. So long as we follow the principle of the rule by law, we have the guarantee to protect and promote economic development and social advance. I am confident that our Party has the resolution to solve China’s issues with the wisdom of common people, and realize the rise of China and the China Dream in coming years.
Dear friends, a new historic moment—the spring of the rule by law is coming. Let us do our job with the great courage for reform and embrace the better future of China brought by the rule by law.