Constitution and Law: the Basis for Administering the Government

From: English Edition of Qiushi Journal Updated: 2011-09-21 08:28
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 On January 24, 2011, the Standing Committee of the National People’s Congress (NPC) convened a seminar to discuss the formation of a socialist legal system with Chinese characteristics. Wu Bangguo, the Chairman of the National People’s Congress, delivered a speech at the seminar. It is of great importance to recognize the significance of forming a socialist legal system with Chinese characteristics, identify the fundamental experiences that have been gained during this process, and explore how the task of implementing and improving the system can be achieved. 

 The formation of a socialist legal system with Chinese characteristics is an incredible achievement in the development of socialism with Chinese characteristics. The Communist Party of China (CPC) has gained a wealth of experience in governance since the foundation of the People’s Republic of China, and especially following the launch of the reform and opening up drive. The socialist legal system with Chinese characteristics is a collective embodiment of these experiences in the form of institutions and laws. Moreover, the formation of a socialist legal system with Chinese characteristics represents a milestone achievement in the development of socialist democracy and law in China. Its formation has provided a legal basis for the operation of the government, and has ensured that all aspects of government power, ranging from decision making to implementation and supervision, have been regulated and brought within the framework of the law. At the same time, the people are able to more effectively monitor the government and ensure that it performs its functions in accordance with the law. In this way, the government is more driven to complete the tasks that it has been given by the Party and the people. It will show greater devotion to its fundamental task of serving the people, and will strive to win public satisfaction.  

 China’s socialist legal system has the following characteristics: First, it has defined the way that the government interacts with the market, the enterprises, and society in general. At the same time, it clearly stipulates the responsibilities and powers of the government as well as the means of administration at its disposal. By doing so, it ensures that the government performs all of its functions diligently, and thereby leads to increased effectiveness in administration and management. Second, it regulates and restricts the use of power systematically. This ensures that the government exercises its powers correctly, and helps to stop corruption at the source. Third, it has established the legal status of market entities, formulated market rules, and defined monitoring systems. This helps to stimulate social vitality and competitiveness, which in turn helps to promote sound economic and social development. Fourth, it constitutes a safeguard for social equality on the basis of the law, ensuring that everybody has equal rights and equal opportunities, that everybody has to follow the same rules, and that the distribution is fair for everybody. In addition to this, the system also includes institutions and mechanisms for the resolution of conflicts. This ensures that everyone is able to enjoy the fruits of China’s development, which in turn promotes social harmony and stability. 

 Governments and government personnel at all levels are required to understand the core essence of Wu Bangguo’s speech. They must realize the important bearing that the formation of the socialist legal system with Chinese characteristics has on the work of the government, fully understand what is expected of them, and fulfill the various requirements of the socialist legal system in practice. To strictly abide by the law in the course of administration is to contribute to the development of a government that is administered according to law. 

 First, we must fully understand our Constitution and our laws. Government personnel must be familiar with the basic content and major institutions of the socialist legal system if they are to perform effectively in the administration of national and social affairs. In particular, they must be well versed in the laws and guidelines that pertain to performance. China’s Constitution and laws reflect the assertions of the Party and the common will of the people. Therefore, government personnel at all levels should place a high level of emphasis on studying the essence of China’s Constitution and laws. Through such study, they should come to consciously respect, revere, abide by, and act on the basis of China’s Constitution and laws. Moreover, their attainments and actions should serve as an example for the rest of society to follow. This way, as the concepts of law and the rule of law become ingrained in society, we shall see the development of a social climate in which people respect the law, revere the law, believe in the law, abide by the law, and use the law to protect their rights and interests. 

 Second, we must remain loyal to our Constitution and our laws. Above all, the role of governments and government personnel at all levels is to act in accordance with China’s Constitution and its laws. With the formulation of a socialist legal system with Chinese characteristics, there is an increasing need for the government to change the way that it operates. While in the past the government operated on the basis of policy and experience, now it must base its administration on laws and institutions. Before making a decision or taking a specific action, the government must first consider the scope of its authority, the legal basis and standard for its intended action, and the procedure that it must follow. 

 1. Decisions must be made in accordance with the law. Government decisions must be made according to the scope of authority and the procedures defined in law. Before major decisions are made, public surveys, specialist referrals, risk appraisals, and conformance reviews must be conducted, while the eventual decision must be the product of a group discussion. Stern action must be taken to prevent and reverse illegal or unauthorized decisions.

 2. Administrative enforcement must be rigorous. The government must actively perform its legally prescribed duties in order to safeguard the statutory rights, interests, and freedoms of the public. Violations of the law must be punished strictly in order to maintain social and economic order. Adhering to the principle that nobody is above the law, we must ensure impartiality in our enforcement of the law and strive to uphold social justice and equality.  

 3. Conflicts must be resolved in accordance with the law. By giving full play to the role of administrative rulings, reconsideration, and mediation, we must encourage people to express their claims and settle conflicts in accordance with the law. Claims that accord with the law must be supported. In cases where claims are not supported, the reasons must be made known to the people involved in order to win their understanding. Where the people involved are in difficulty, help should be given.  

 4. Our actions must be subject to supervision. We must subject ourselves to the supervision of people’s congresses and their standing committees. This means that we should actively report to people’s congresses, respond to their inquiries and questions, and take the opinions and suggestions of deputies on board. At the same time, we should consciously subject ourselves to the democratic supervision of the CPPCC and take its suggestions and criticisms on board. We should also subject ourselves to supervision by the courts, take steps to enhance dedicated forms of supervision such as inspections and audits, and enhance the supervision that takes place between different levels of government. In addition, major efforts should be made to subject government affairs to the monitoring of the public. 

 5. The system of administrative accountability must be enhanced. Leading cadres in the Party and the government must be held accountable for their actions. Where national interests, public interests, and the rights and interests of citizens are damaged by the arbitrary conduct, negligence, and unlawful decisions of administrators, and where such practices have a seriously negative social impact or even undermine social stability, the leaders and administrative heads responsible must be punished in accordance with the law. 

 Third, we must maintain the consistency and the dignity of the legal system. A consistent legal system is essential if we are to maintain national unity, political stability, and social harmony on the basis of the law. Maintaining the consistency of the legal system is both a responsibility and a major political task of governments and government personnel at all levels. 

 1. Administrative regulations, rules and regulatory documents must be formulated in accordance with the law and in line with the principle of consistency. This means that administrative regulations should not come into conflict with the Constitution and laws; that rules should not come into conflict with the Constitution, laws, and administrative regulations; and that regulatory documents should not come into conflict with the Constitution, laws, administrative regulations, and rules. It also means that administrative regulations, rules, and regulatory documents should not conflict with each other. 

 2. Reviews of rules and regulatory documents must be enhanced. Firm remedial action should be taken in cases where rules and regulatory documents have been made without jurisdiction or in violation of the law, in cases where regulations are improper, and in cases where violations have taken place in the process of formulation. In accordance with requirements, administrative regulations and rules must be submitted to the Standing Committee of the NPC and the standing committees of local people’s congresses for review. Where problems are identified during the reviewing process, solutions must be identified and remedial action taken on a prompt basis.

 3. A mechanism for the sorting of administrative regulations and rules must be put in place. In accordance with the requirements of the Standing Committee of the NPC, the State Council has sorted in 2010 a total of 691 administrative regulations that were valid as of the end of 2009, and the results of this initiative have since been made public. The sorting of rules has essentially been completed. We still need to establish a permanent mechanism for the sorting of administrative regulations and rules which will ensure the prompt revision or cancellation of rules which fail to conform to newly issued laws or which are no longer geared to social and economic development. In order to maintain the authority and dignity of our Constitution and our laws, it is essential that we ensure the consistency of our legal system. Governments and government personnel must consciously restrict their actions to the confines of our Constitution and laws, play a leading role in maintaining the authority and dignity of the law, and take a firm stand against any act that would undermine the authority and dignity of our Constitution and our laws. 

 4. The standard of the government’s legislative work must be raised. The formation of a socialist legal system with Chinese characteristics means that more will be asked of the government’s legislative work in the future. When administrative regulations and rules are being formulated, greater emphasis must be placed on making these more detailed, more specific, and more suited to practical application, which is important if laws are to be effectively implemented. The focus of our legislative efforts at present should be the formulation of supporting administrative regulations and rules which are required by previously passed laws. We should seize the initiative in working out the specifics of these supporting regulations and rules and make a concerted effort to issue them at the earliest possible juncture. When we are drafting new laws in the future, we should give equal consideration to supporting administrative regulations and rules, and seek to secure the issue and implementation of both at the same time. When formulating administrative regulations and rules, we must seek wider public participation, listen to public opinion, and conduct exhaustive reviews. This will make the formulation process more rational and more democratic, and will help us to raise the standard of our regulations and rules.   

(Originally appeared in Qiushi Journal, Chinese edition, No.6, 2011)


Note: Author: Member of the State Council of the People’s Republic of China

 This is a speech made by the author at the Seminar on the Formation of a Socialist Legal System with Chinese Characteristics on January 24, 2011. Its content has been slightly adjusted for this publication.

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 State Council Members 

 State Council members are a constituent part of the State Council of the People’s Republic of China and its Executive Meeting. The position of State Council members was created on May 4, 1982 when the 23rd meeting of the Standing Committee of the Fifth National People’s Congress approved major changes to the layout of the State Council. According to the Organic Law of the State Council of the People’s Republic of China, the role of State Council members is to assist the Premier of the State Council and to be in charge of certain areas of work or carry out certain major tasks under the authorization of the Premier or the Executive Meeting. State Councilors are nominated by the Premier of the State Council and elected by the NPC. Appointments are ultimately subject to the approval of the President on the basis of the decision of the NPC. Members of the State Council can serve for a maximum of two consecutive terms, with each term being 5 years in duration. The current acting members of the State Councilors are: Liu Yandong (f.), Liang Guanglie, Ma Kai, Meng Jianzhu, Dai Bingguo (Tujia Nationality).

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