Accelerating the Development of a Socialist Law-Based Government with Chinese Characteristics

From: English Edition of Qiushi Journal Updated: 2012-07-04 14:49
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The CPC Central Committee and the State Council have placed great emphasis on promoting administration and governance in accordance with the law. The Party set forth the important task of promoting government administration in accordance with the law at its Sixteenth National Congress. In March 2004, the State Council issued the Outline for Promoting Law-Based Administration in an All-Round Way, which defined the goal of promoting the building of a “law-based government” for the first time. We should be fully aware of the great significance of promoting government administration in accordance with the law, and engage in a constant effort to promote the fulfillment of this strategic task.

I. The essential requirements and great significance of building a socialist law-based government with Chinese characteristics

The rule of law is the opposite form of the rule of man. The birth of the rule of law represents a major accomplishment in the development of human civilization over thousands of years. As a form of superstructure, the characteristics of the rule of law may vary according to the economic foundation, political system, history and culture of the country in question. The socialist law-based government with Chinese characteristics combines characteristics common to all law-based governments and characteristics unique to China.

In terms of generality, the socialist law-based government with Chinese characteristics demonstrates the general features associated with the rule of law. The fundamental requirement of the rule of law is that all administrative activities are subject to the norms and constraints of the law. This ensures that the use of power conforms to the will and the interests defined by the law, preventing the expansion and abuse of power. In this way, the legal rights and interests of citizens, legal entities, and other organizations can be realized and safeguarded. This fundamental requirement clearly defines the relationship between the government and the law and the relationship between the government and citizens. The rule of law puts the law before governments. Government activities may only be carried out within the boundaries of the law, not outside or above it. Moreover, the rule of law also puts citizens before governments. A government based on the rule of law is required to realize and safeguard the legal rights and interests of citizens, and is forbidden from violating or infringing these legal rights and interests. It is thus clear that the rule of law first and foremost emphasizes that the government, and not just citizens, must abide by the law. In more specific terms, the essential requirements of the rule of law are demonstrated by the following five basic features. First, the administrative organs must be established in accordance with the law. This is a prerequisite of government administration according to law. The law must provide for the establishment of administrative organs and the staffing of such organs, and thereby the government is forbidden from establishing administrative organs or expanding the scale of existing staff arbitrarily. Second, all administrative power must be derived from the law. This is the key to exercising the rule of law. All administrative power must be authorized by either the law or the institutions of state power. In other words, an administrative organ cannot exercise a power that has not been granted to it by the law. Third, administrative procedures must be determined in accordance with the law. This is a condition for government administration in accordance with the law. Not only must administrative power be acquired and applied on the basis of legal stipulations to ensure substantial legality, but the exercise of power and administrative practice must also accord with legally stipulated procedures to ensure procedural legality. When a government institution takes administrative action, it must do so in strict accordance with the methods, approaches, sequence, time limit, and other procedures that have been legally stipulated. In addition, such institutions must make information available to the public and promote transparency in the exercise of government administration, so as to safeguard the rights of citizens, legal entities, and other organizations to stay informed about, participate in, express views on, and monitor administrative procedures. Fourth, administrative actions must be conducted in accordance with the law. This is the core requirement of the rule of law. Administrative organs and their employees must act strictly within the confines of their legally defined duties and responsibilities and in accordance with legally mandated procedures. Moreover, they should make decisions in accordance with the law, perform their duties in accordance with the law, and strictly enforce the law. They should conscientiously apply the principles of the rule of law and legal means to resolve conflicts and problems emerging in economic and social development. Fifth, administrative responsibility must be assumed in accordance with the law. This is a guarantee to ensure the rule of law. First, administrative organs must be accountable to the law and take responsibility for their administrative actions in accordance with the law. In cases involving the improper use of power and the abuse of power, the organizations and individuals involved should be held accountable in accordance with the law. Second, those involved in inaction, negligence and dereliction of their legally prescribed duties should bear legal responsibility for their actions. This is because all power comes with responsibility, and those with power must fulfill their obligations. We cannot allow power to exist in the absence of responsibility. At the same time, the use of power should be supervised, and this supervision should be all-embracing. We cannot allow power to be exercised in the absence of supervision. Third, violations of the law must be rectified, and those responsible should be held accountable for their actions. This calls for sound and effective systems for administrative accountability and the correction of administrative mistakes. These three aspects dovetail with one another, forming a mechanism for the supervision and administrative accountability of a law-based government. Therefore, it is clear that a law-based government is one that is operated in accordance with the law. A law-based government is a lawful government, a limited government, a standardized government, a law-abiding government, and a responsible government. This essential requirement, along with its basic features, is what distinguishes law-based government from government ruled by men. In governments ruled by man, the rulers exercise absolute authority, and government acts are not bound by law, but controlled at the will of individuals.

The State Council issued a Decision on Strengthening the Development of a Law-Based Government on November 8, 2010. / Xinhua

In addition to general features, the socialist law-based government with Chinese characteristics also has features that distinguish it from the law-based governments of other countries, especially those of Western capitalist countries. A constitution is the most fundamental law of any country, representing the foundation on which a law-based government is built. The characteristics of a law-based government are determined by the constitution on which it is based. Owing to constitutional differences, the socialist law-based government with Chinese characteristics differs from the law-based governments of other countries in at least the following aspects: First, the fundamental tenets are not the same. According to the provisions of China’s Constitution, all power in the People’s Republic of China belongs to the people. The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law. This means that the socialist law-based government with Chinese characteristics is, in essence, a government of the people, whose fundamental purpose is to serve the people. Fundamentally speaking, being authorized by the law is being authorized by the people, and administration in accordance with the law is administration in accordance with the will and interests of the people. As the power of the government comes from the people, the use of power should be for the people, accountable to the people and subject to the supervision of the people. Second, the basic systems employed are not the same. According to the Constitution, China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. In addition, China implements a basic economic system in which the public sector is dominant and the public and non-public sectors develop side by side, a basic political system of people’s congresses, and a socialist market economic system. These basic systems determine that the Chinese law-based government must be based on socialism. The government must reflect and realize, and not depart from or go against, the requirements of the socialist economy and democracy. In short, the government must be conducive to consolidating and developing socialism. Third, the guiding principles are not the same. The fundamental principle behind socialist democracy, which is embodied throughout the Constitution, is to maintain an organic unity between adhering to the leadership of the Party, making the people the masters of their own country, and governing the country in accordance with the law. This is also the fundamental guiding principle behind the development of a law-based government. Only by adhering to the leadership of the Party will we be able to ensure that China maintains the correct political orientation, thereby providing a solid political basis on which the position of the people as the masters of the country and the rule of law can be safeguarded. Only by maintaining the position of the people as the masters of the country will the Party’s leadership and the rule of law be backed by the strongest support from the people. Only by governing the state in accordance with the law will the Party’s leadership and the position of the people as the masters of the country be guaranteed by the law. Fourth, the way that the rule of law has been developed is not the same. After having led the people in seizing political power, establishing a socialist state, and founding the people’s government, the CPC set out to develop a socialist law-based government with Chinese characteristics in response to the requirements for the development of socialist economy and democracy. Moreover, China was faced with the challenge of establishing a law-based government suited to its national conditions in the space of just decades, whereas in Western countries this process took one or two hundred years to complete. The advanced nature of the Party, the nature of the government as a servant of the people, and the urgency of our task dictate that China’s efforts to develop a socialist law-based government with Chinese characteristics must and can only be made under the leadership of the CPC and through a combination of top-down and bottom-up initiatives.

As a combination of characteristics common to all law-based governments and characteristics unique to China, the socialist law-based government with Chinese characteristics can be summarized as a people’s government that is led by the CPC in accordance with the law. Being founded on the people’s democracy, this government takes the law as its criteria, imposes constraints on the use of power, and puts administration in accordance with the law at its core.

The development of a socialist law-based government with Chinese characteristics signals a fundamental change in the mode of administration employed by the CPC. This change is of major strategic significance for the following reasons. First, it is an inherent requirement to the development of a socialist market economy. The market economy is a self-regulating economy based on contracts and competition. The essential requirement for developing a market economy is to confirm the property rights of market entities and define the exchange relationships and competitive relationships between different market entities in accordance with the law. This means that the relationships between the government and enterprises, between the government and the market, and between the government and the public must also be defined in accordance with the law. The law must be used to ensure that the government safeguards the legal rights and interests of market entities, administers and serves various market entities in accordance with the law, and creates a favorable environment for fair competition. At the same time, it should restrict the government’s improper interference in the economy. This is a necessary precondition for the market to play a basic role in the allocation of resources. Without a sound government that is administered in accordance with the law, it will be impossible to establish a sound socialist market economy. Second, the rule of law is an important aspect of our efforts to promote socialist political civilization. Strengthening and improving the leadership of the CPC, adhering to and improving the socialist democratic system, and implementing the socialist rule of law are the three most important aspects for the development of socialist political civilization. The rule of the CPC in accordance with the law is mainly manifested through the operation of the government, which is led by the Party, in accordance with the law. Developing socialist democracy is, in essence, to maintain the position of the people as masters of the country and to safeguard their various rights, while developing a law-based government is a major precondition for realizing and safeguarding the rights of the people. Implementing the socialist rule of law not only requires a sound legal system, fairness in the justice system, and law-abiding citizens, but more importantly, requires a government that respects the law, enforces the law, and abides by the law. Without a law-based government, we would lack the solid foundations needed to promote socialist political civilization. Third, the rule of law is a fundamental guarantee for building a harmonious socialist society. Developing a law-based government will help to promote the formation of integrated, comprehensive, and reasonable systems. In turn, this will ensure that the government and members of society can enjoy their rights, exert their rights, safeguard their rights, fulfill their obligations, and bear responsibilities in accordance with the law. In addition, building a law-based government will help to standardize the exercise of administrative power, balance various interests, resolve various conflicts of interest, and ensure that social management is carried out in accordance with the law. This will prevent and reduce social conflicts and disputes at the source, and play a fundamental role in maintaining social harmony and stability. Fourth, the rule of law is an essential measure to strengthen the development of the government. The purpose of developing a law-based government should be to regulate and restrict the use of power in accordance with the law. Only by bringing the use of power under the governance of the law, using the law to regulate authority, handling affairs in accordance with the law, and managing personnel according to the rules will we be able to effectively prevent and punish acts of corruption and ensure that administrative organs and their staff work for the interests of the general public. Doing so will ensure that we are able to preserve the long-term peace and stability of the country.

II. Major achievements and prominent problems

Since the institution of reform and opening up policy more than 30 years ago, and especially since the implementation of the Outline for Promoting Law-Based Administration in an All-Round Way, we have made great achievements in promoting administration in accordance with the law and developing a law-based government. First, we have formulated a comprehensive system for a law-based government. We have established a basic system for administration in accordance with the law and a law-based government, which mainly comprises of laws concerning administrative organizations and personnel, laws related to administrative actions and procedures, and laws concerning administrative supervision and remedy. The system focuses on regulating economic, political, cultural, and social affairs and government activities. Thus, there are laws governing all aspects of administrative management. Second, the formulation of administrative procedures has been accelerated. In terms of legislation, the number of provisions aimed at strengthening administrative procedures has increased in laws, regulations and rules, signaling the improvement of our system for administrative procedures. In terms of law enforcement, governments and departments at all levels have paid increasing attention to following procedures in law enforcement, showing that the notion of following the proper procedures has gradually become deeply rooted in society. Third, we have gradually standardized the exertion of power. Scientific and democratic policy-making in accordance with the law has become the basic principle of governments at all levels. Law enforcement operations have been effectively standardized through the deeper reform of the administrative law enforcement system. The system of administrative management has been constantly improved, with management over the layout of organizations and the allocation of personnel being gradually standardized. We have implemented the Administrative Permission Law and actively pushed forward the reform of administrative approval systems, thereby bringing about changes in the role of the government and promoting innovation in management. Systems and mechanisms for addressing emergencies have also been improved on a constant basis. Fourth, we have significantly stepped up the intensity of supervision and administrative accountability. Governments at all levels subject themselves to the supervision of the corresponding people’s congresses and their standing committees, the democratic supervision of the CPPCC, and the supervision of people’s courts. Moreover, dedicated forms of supervision such as inspections and audits as well as supervision by the public and the media have also been constantly enhanced. Major efforts have been devoted to making government affairs and information public, and to enhancing the system of administrative accountability, which have been met with widespread public support. Fifth, government personnel have become more aware of lawful administration and more adept at performing their administrative duties in accordance with the law. A climate in which people study the law, respect the law, abide by the law, and use the law has emerged in all localities and departments. Government workers, especially leading cadres at all levels, have paid increasing attention to managing state and social affairs through legal means. Administrative organs have begun to take the initiative in promoting administration in accordance with the law, no longer viewing this as just an external requirement. As a result, the development of the socialist law-based government with Chinese characteristics has gained strong impetus.

At the same time, we should be aware that there are still many prominent problems and weak links regarding China’s efforts to promote administration in accordance with the law and develop a law-based government. This is apparent in the following aspects. Firstly, the legal framework of administrative laws and the quality of legislation need to be further improved. With the formation of the socialist legal system with Chinese characteristics, our framework of administrative laws is now essentially complete. However, we still face an arduous task in making new laws and revising and repealing existing ones. In some areas there are still no laws to go by, whereas in others there are laws and regulations that need to be revised. In addition, the formulation of supporting laws and regulations has lagged behind in some cases, certain laws and regulations do not connect well with one another, and some laws and regulations have been difficult to implement in practice. Moreover, the problem of government departments attempting to expand their own interests through legislation and the formulation of rules is yet to be resolved. Secondly, the function of the government is yet to be fully transformed, and there are still institutional barriers that need to be eliminated. Though we have come a long way in the development of our administrative system, the relationships between the government and enterprises, between the government and capital, between the government and institutions, and between the government and society still need to be clarified. The problem of the government overstepping its bounds and failing to play its role still exists. There is still a great deal of overlap between the duties of various government organs, and the functions of governments at different levels also need to be clarified. The government is still involved in certain areas that it need not administer and in practice cannot effectively administer. There are no clear boundaries surrounding the functions of certain departments, and the level of power they exercise is disproportionate to the level of responsibility they assume. The nature of certain intermediary organizations and trade associations has yet to be accurately defined. Some public institutions are still fulfilling administrative functions. These are all issues that need to be resolved. Thirdly, administrative procedures need to be further improved. Some administrative organs fail to follow legal procedures and even violate the law in the decision making process. We need to further improve the system of administrative procedures, and formulate a unified administrative procedure law. Some procedures have become mere formalities, while others are not rigorous enough in design, and are therefore unable to guarantee that substantive justice is served. There are still problems such as emphasizing substance but not procedure, neglecting to follow legally prescribed procedures, and being arbitrary in decision-making. Fourthly, we are still facing prominent problems in regard to administrative law enforcement, such as arbitrary conduct, negligence, and the abuse of power. In some cases, acts in violation of the law have not been promptly suspended or subject to strict punishment. Some departments and local governments have shown the tendency to protect local and departmental interests during the course of law enforcement. In addition, in some cases there is too much discretionary authority in law enforcement. Fifthly, we are still falling short in terms of supervision and administrative accountability. There are cases where violations of administrative law have not been promptly rectified and punished. The exercise of power in some localities and departments is not transparent enough, and public supervision has not been put into effective practice. Sixthly, some government workers are not fully accustomed to the principle that their powers are there to serve the people, lacking both the awareness and the capacity to administer according to the law.

III. Key tasks under new circumstances

We should devote efforts to the following six areas in accordance with the essential requirements of developing a law-based government with Chinese characteristics, with focus on implementing the Outline for Promoting Law-Based Administration in an All-Round Way and the Opinions of the State Council on Strengthening the Building of a Law-Based Government.

1. We must adhere to the fundamental tenet of governing for the people, which is the ideological basis for accelerating the development of a law-based government. We must remember that all state power belongs to the people, and that this is the core aspect and fundamental principle of our state system. We must safeguard the legal rights and interests of citizens, legal entities and other organizations and work to uphold social justice and equality so as to promote social stability and harmony.

2. We need to further improve the legal system, which is a prerequisite for accelerating the development of a law-based government. First, we should work to improve the system of administrative regulations and laws. Second, we should raise the quality of the government’s legislation. We must uphold a commitment to scientific legislation, and ensure that legislation is firmly grounded in reality. In this way, the laws and regulations we formulate will be tenable in terms of both theory and practice, being able to effectively resolve actual problems. Third, we must maintain the consistency of our legal system. Administrative organs with statutory legislative power must act within legal limits and follow legally prescribed procedures in their legislative activities, being cautious not to overstep their authority in legislation.

3. We should continue to deepen the reform of the administrative system, which is a necessary requirement in the effort to accelerate the development of a law-based government. We should optimize the organizational structure of the government, carry out reforms to establish larger government departments by consolidating government ministries and commissions, and improve mechanisms for collaboration and coordination between different departments. We need to define a more rational division of powers between the central and local governments. We should promote legislative work aimed at regulating government organizations and their staff contingents. By doing so, we will place these organizations and their staffing arrangements on a more scientific, standardized, and legal footing.

4. We must strictly abide by the law in the course of administration, which is the core aspect of developing a law-based government. First, we must make decisions in accordance with the law. Decisions should be made within the limits allowed by the law, and should be legal in both substance and procedure. We should improve our decision making mechanisms to make decisions more rational and more democratic. 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. This legal procedure for major administrative decision-making should be strictly followed. Second, we must diligently perform our duties in accordance with the law. In an effort to guarantee and improve the public well-being, we should pay more attention to social management and public services whilst strengthening economic regulation and market supervision. Third, we must be rigorous in administrative law enforcement. On one hand, we should continue to promote concentrated law enforcement and comprehensive law enforcement, so as to address the overlapping of multiple law enforcement agencies. On the other hand, we should reasonably distribute law enforcement power between governments at different levels in accordance with their respective functions, reduce the number of administrative tiers on which enforcement is carried out, promote the delegation of law enforcement authority to lower levels of government, and enhance the ability of local authorities to enforce the law. We should standardize the procedures for administrative law enforcement, adhere to the principle that no one is above the law, and ensure the impartial outcome of the law enforcement process. Fourth, we must resolve social conflicts and disputes in accordance with the law. By giving full play to the role of administrative rulings, reconsideration, and mediation, we need to encourage people to express their claims, settle conflicts and safeguard their legal rights and interests in accordance with the law.

5. We must enhance supervision and administrative accountability, which is an important guarantee for accelerating our efforts to develop a law-based government. We should strengthen supervision of administration. We must ensure and support lawful supervision by audit and inspection departments, enhance the supervision of subordinate organizations by superior organizations, and give full play to the supervisory role of administrative reconsiderations. More government information should be made available to the public. All government information other than that which involves state secrets, commercial secrets, and individual privacy should be made available to the public. We must ensure the openness and transparency of administrative procedures. All government departments pertaining to public services and all areas related to public programs should follow the principle of openness while carrying out their initiatives. We should enhance legislation concerning administrative accountability and enforce strict standards in administrative accountability, so as to ensure that every mistake can be corrected and that every person is held accountable for his or her actions.

6. We must strengthen our organization and leadership, which is the key to accelerating our efforts to develop a law-based government. Local governments and departments at all levels should improve their leadership mechanisms for promoting administration in accordance with the law. They should integrate the task of promoting administration in accordance with the law into the task of reform and development, make unified arrangements for these tasks, approach these tasks concurrently, and conduct joint appraisals of performance in these two aspects of their work. In this way, the requirements for administration in accordance with the law can be fully implemented in all aspects of government initiatives, ensuring that administration in accordance with the law can truly become a mandatory requirement and restraint. Greater efforts should be made to teach government personnel about the legal system to enhance their capacity to administer in accordance with the law.


(Originally appeared in Qiushi Journal, Chinese edition, No.1, 2012)

Author: Member and Secretary General of the State Council of the People’s Republic of China

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