LI Junru*

 

Abstract: The Decision made by the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC) on comprehensively pushing forward the rule of law is a grand blueprint for ensuring human rights through the rule of law. The Decision has fully implemented the constitutional spirit of “respecting and ensuring human rights,” and shown the thought and plans of the CPC regarding completely ensuring human rights while comprehensively pushing forward the rule of law. Completely ensuring human rights is an intrinsic requirement and an important task for comprehensively pushing forward the rule of law. In the process of completely ensuring human rights, the leadership of the CPC has to be upheld. The relationship between the CPC and the rule of law is the core issue of legal construction and also the core issue in completely ensuring human rights.

 

Keywords: rule of law   human rights    China

 

The rule of law is the fundamental requirement and the basic guarantee for sticking to and developing socialism with Chinese characteristics as well as the inevitable requirement for modernization of the national governance system and governance capability, which has a great bearing on CPC rule and national rejuvenation, people’s happiness and well-being and lasting political stability for both the CPC and the country. The Fourth Plenary Session of the 18th CPC Central Committee was the first of its kind to specifically study and make plans regarding the rule of law, a fundamental strategy of governance. The Decision on Certain Key Issues on Comprehensively Pushing Forward the Rule of Law (hereafter, “the Decision”) is a guideline for building a socialist country operating under the rule of law and a grand blueprint for comprehensively pushing forward China’s human rights cause.

 

 

It should be recognized that the rule of law and respecting and ensuring human rights are big transformations in governance by the country’s ruling party, the CPC. The Decision organically integrates the general target of comprehensively pushing forward the rule of law and the principles of respecting and ensuring human rights, providing a grand blueprint for ensuring human rights through the rule of law.[page]

 

Since the adoption of the policy of reform and opening up, the CPC’s understanding of the rule of law has gradually improved and deepened. At the Third Plenary Session of the 11th CPC Central Committee, during which the Party initiated the policy of reform and opening up and the development of socialist modernization, Deng Xiaoping, in summarizing the experience and lessons of the tragic Cultural Revolution and particularly lessons drawn from the later years of Mao Zedong, advocated strengthening the legal system in order to ensure the people’s democracy.1 He said strengthening the legal system was not to rule the people but to push forward democracy among the people. On Feb. 8, 1996, Jiang Zemin, in a legal lecture organized by the CPC Central Committee, for the first time talked about the rule of law.2 The 15th National Congress of the CPC, which began on Sept. 12, 1997, clearly described the concept of the rule of law. It defined the role and function of the rule of law in national political life as a fundamental strategy of state governance of the Chinese people led by the CPC, an objective requirement for developing a socialist market economy, an important indicator of civilization and social advancement and an important guarantee of lasting political stability.3 In line with this fundamental strategy, the Party proposed the task of building a socialist country under the rule of law. Amendments to the Constitution, which were approved in 1999 by the second session of the 9th National People’s Congress (NPC), stipulate that the People’s Republic of China should adopt the rule of law and build a socialist country under the rule of law. These amendments indicated a transformation in governance by the ruling CPC and in state governance.

 

After the 18th National Congress of the CPC, Xi Jinping said the rule of law is a fundamental strategy wherein the CPC leads the people to govern the country and is a basic means of governance. The important role of the rule of law should be further brought into play in state governance and social administration, he said, adding that the CPC will comprehensively push forward the rule of law and speed up the construction of a socialist country under the rule of law.4 The Fourth Plenary Session of the 18th CPC Central Committee approved the Decision, which is a guideline for comprehensively pushing forward the rule of law. This was an unprecedented event in the modern and contemporary history of China and a big change in CPC thought regarding state governance. This change is in tandem with the principled stand of China on human rights issues. In 1998, when marking the 50th anniversary of the Universal Declaration of Human Rights, Jiang Zemin wrote in a letter to the China Society for Human Rights Studies (CSHRS) that since the founding of the People’s Republic of China (PRC) and particularly the adoption of the policy of reform and opening up, the Chinese government and the Chinese people have integrated the principle of the universality of human rights and the actual conditions of the country, made enormous efforts in promoting and protecting human rights, and made remarkable achievements that have drawn world attention. Jiang encouraged the continued strengthening of the construction of democracy and the legal system, pushing forward the rule of law, building a socialist country under the rule of law, further enhancing the human rights cause in China, and fully ensuring human rights and rights to democratic freedom.5 In 2008, when marking the 60th anniversary of the Universal Declaration of Human Rights, Hu Jintao wrote in another letter to the CSHRS that in the process of comprehensively building a well-off society and speeding up the construction of socialist modernization, China should always stick to placing people first, respecting the principle of the universality of human rights, prioritizing the rights to existence and development as fundamental human rights based on actual conditions in China, and ensuring the rights of all members of society to equal participation and fair development on the basis of sound and rapid socioeconomic development.6 Those remarks represent the basic stand of the CPC on human rights issues. In 2003, the Third Plenary Session of the 16th CPC Central Committee proposed to include “respecting and ensuring human rights” in the Constitution. This was endorsed in March 2004 at the second session of the 10th NPC. Human rights protection has since been included in the constitutional paradigm. This indicates that respecting and ensuring human rights, as a governance concept, is considered in all aspects of politics, economics and social life and has laid a solid basis for making two national human rights action plans. The Fourth Plenary Session of the 18th CPC Central Committee was another milestone, with the Decision encouraging comprehensively pushing forward the rule of law with the aim of building a socialist legal system with Chinese characteristics and constructing a socialist country under the rule of law. Meanwhile, the Decision emphasized, in order to fulfill this aim, five principles: sticking to the leadership of the CPC; maintaining the principal role of the people; ensuring full equality of people before the law; integrating the rule of law and the rule of virtue; and proceeding from China’s actual conditions. Legal construction must work for the people, depend on the people, benefit the people, protect the people, place the fundamental interests of the people as the starting and ending point, ensure that the people enjoy the broadest rights and freedoms, undertake due obligations, safeguard fairness and social justice, and promote common prosperity. This shows that the action plan approved by the plenary session is an outline for ensuring human rights through the rule of law.[page]

 

 

The Decision approved by the Fourth Plenary Session of the 18th CPC Central Committee implements the constitutional spirit of “respecting and ensuring human rights,” and embodies the thought and planning of the CPC Central Committee regarding completely ensuring human rights through comprehensively pushing forward the rule of law. Comprehensiveness is one of the features of this plan.

 

First, comprehensively ensuring human rights was included in the Decision to complete the building of a well-off society, comprehensively deepen reform and comprehensively push forward the rule of law. Both completing the building of a well-off society, which was raised at the 18th CPC National Congress, and comprehensively deepening reform, which was raised at the Third Plenary Session of the 18th CPC Central Committee, include tasks and requirements for comprehensively pushing forward the rule of law, and therefore the task of respecting enduring human rights. In accordance with the five-in-one general arrangement for building socialism with Chinese characteristics, the 18th CPC National Congress, in elaborating on new requirements for comprehensively building a well-off society, specified that by 2020 the fundamental strategy of advancing the rule of law will be comprehensively implemented, government according to the rule of law will be basically established, judicial credibility will be continuously improved and human rights will be earnestly respected and ensured.7 Therefore, respecting and ensuring human rights is basically the same thing as building a nation under the rule of law. Comprehensively advancing the rule of law means comprehensively ensuring human rights.

 

Second, comprehensively ensuring human rights should be embodied in the legal system that we are building. In explaining the general goal of advancing the rule of law, Xi Jinping said, “Comprehensively advancing the rule of law is related to many aspects and there should be an overall task, i.e., building a socialist legal system with Chinese characteristics. All aspects of comprehensively advancing the rule of law should focus on this overall task.”8 This overall task also requires the “one plus five” legal system. “One” refers to researching and constructing legal theories of socialism with Chinese characteristics. “Five” refers to building five systems for the rule of law, including a complete standardized legal system, an effective legal implementation system, a rigorous legal supervision system, a potent legal protection system, and an improved intra-Party regulation system. The one plus five legal system emphasizes the spirit of law that embodies requirements for respecting and ensuring human rights. In this sense, the CPC Central Committee has in fact constructed a major plan for building a legal system in order to comprehensively ensure human rights.[page]

 

Third, completely ensuring human rights should be reflected in the basic work pattern of the construction of a nation under the rule of law. While calling for the construction of the legal system, the plenary session also set forth a basic work pattern. This basic work pattern calls for comprehensively advancing the rule of law in four aspects, i.e., scientific legislation, strict law enforcement, legal justice, and advocacy of compliance with the law, in order to enhance the modernization of the national governance system and capacity. It calls for accomplishing these goals in line with the requirements of the rule of law, governance by law and administration by law as well as the requirements of a nation under the rule of law, government under the rule of law and society under the rule of law. The main contents of the Decision are divided into four parts: legislation, enforcement, justice and compliance. Respecting and ensuring human rights are highlighted in all these four parts.

 

From the standpoint of scientific legislation, how can we protect human rights? The Decision emphasizes that law is the authority for state governance and good laws are the precondition for good governance. The Decision says that while strengthening legislation in key areas, the State has to ensure civil rights, speed up improving legal institutions that ensure equality of rights, fairness of opportunity and just rules, and that protect personal rights, property rights and basic political rights from being infringed upon. The State must also strive to ensure people’s economic, cultural and social rights, realize legalization to protect civil rights, strive to increase awareness about respecting and ensuring human rights throughout society, and work on improving civil rights relief channels and methods.

 

From the standpoint of strict law enforcement, how can we protect human rights? The Decision asks government at various levels, under the leadership of the CPC and on the track of the rule of law, to speed up constructing governance under the rule of law that possesses scientific functionality, a legal definition of duties and responsibilities, clear and strict enforcement, openness and fairness, honesty and effectiveness, and compliance and integrity. The Decision also emphasizes strict, standardized, just and civilized law enforcement, which effectively punishes violations and places priorities on the key areas that most concern people’s interests, establishing standardized institutions for administrative rules and fully implementing the responsibility mechanism for administrative governance. In pushing forward transparency in administrative affairs, the Decision makes it clear that transparency should be normal with only a few exceptions in order to enhance transparency in decision making, executive processes, administration, service and results.[page]

 

In terms of impartial justice, how can we ensure human rights? The Decision emphasizes that impartiality is the lifeline of the rule of law. Impartial justice leads to social justice and any injustice poses a great danger to social fairness. Therefore, independence and impartiality in judicial and procuratorial processes should be further improved; records and accountability investigations should be established for leading officials who intervene in judicial affairs and meddle in particular judicial cases; the mechanism that ensures that judicial workers perform their duties in line with the law should be improved; the division of judicial powers should be optimized and experiments on the separation of judgment and implementation should be carried out; circuit courts should be set up for the Supreme People’s Court; trans-regional courts and procuratorates should be established; the mechanism of public prosecution in the public interest should be explored; reform of the litigation system should be pushed forward toward an orientation centered on trials strictly based on facts and legal procedures; the fairness of litigation should be monitored all the time and judicial workers should be held accountable for any wrong verdicts; people’s participation in judicial mediation, trials, and lawsuit-related letters and visits should be protected; the people’s assessor system should be improved in order to construct an open, dynamic, transparent and accessible judicial system; judicial protection of human rights should be strengthened to ensure the rights of information, expression, defense, application and appeal for individuals who are involved in lawsuits.

 

In terms of legal compliance by the people, how can we ensure human rights? The Decision says that the authority of the law originates from voluntary support and the sincere belief of the people. People’s rights must be protected by the law and the authority of the law must be maintained by the people. Legal awareness should be enhanced in tandem with the establishment of an improved legal service system that covers both urban and rural areas; encouragement of a better legal aid system; and help improving judicial assistance mechanisms. Rights protection and dispute resolution should be dealt with in accordance with the law. An early warning system for social contradictions should be established, as well as mechanisms for the expression of interests, consultation and dialogue, and assistance and relief. Legal channels for coordination of the interests of the public and protection of the rights of the public should be further smoothed. A three-dimensional crime prevention and control system should also be established to ensure people’s safety and property rights.

 

Looking at the four-part work pattern described above, the Decision unprecedentedly outlines measures for respecting and ensuring human rights, which reflects not only the Chinese people’s demands, but also China’s commitment to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both of which China has signed. The Decision is undoubtedly a guideline for completely ensuring human rights while comprehensively advancing the rule of law.[page]

 

 

In his explanation on the drafting of the Decision at the Fourth Plenary Session of the 18th CPC Central Committee, General Secretary Xi Jinping said, “The relationship between the Party and the rule of law is a core issue in the construction of the rule of law.”9 He also emphasized, “Regarding this issue, the CPC should speak confidently on a large scale. The CPC should further clarify the essence of the socialist rule of law in China to ensure a correct understanding of the issue.”10 This should always be remembered in pushing forward the human rights cause in China, he said.11

 

Why must we adhere to the leadership of the CPC when comprehensively advancing the rule of law, respecting and ensuring human rights, and constructing a socialist country under the rule of law?

 

First, CPC leadership is the most essential characteristic of socialism with Chinese characteristics and the most fundamental guarantee of the rule of law in a socialist country. CPC leadership in China was not self-proclaimed but was the choice of history and a result of actual circumstances. The CPC led the Chinese people to achieve national independence and liberation and improve the human rights of the Chinese people. The CPC also led the people to protect the rights to existence and development, addressed the fundamental survival issues of a nation of 1.3 billion people, and helped build a well-off society. There must be a strong core that can lead the Chinese nation to achieve prosperity, national revitalization, social civilization and the well-being of the people. The ruling CPC is irreplaceable. In completely advancing the rule of law, respecting and ensuring human rights, and constructing a socialist country under the rule of law, there are enough difficulties and challenges. We have to fight not only all distractions from liberalism and other erroneous ideological trends from foreign countries, but also the influence of China’s thousands of years of feudal autocracy and small-scale producer consciousness. Only the CPC is able to overcome such distractions or disturbances.[page]

 

Second, the Constitution defines the leadership of the CPC. The Constitution reflects the achievements made by the Chinese people, led by the CPC, in revolution, construction and reform, establishing the leadership of the CPC, which was the choice of history and the people. Sticking to the rule of law should be based on the rule of the Constitution, and sticking to governance under the law should be based on the governance of the Constitution, which implies adherence to the leadership of the CPC. Since the first Constitution of the People’s Republic of China was adopted in 1954, the CPC has underscored that the Constitution is the general guideline for the Party in governing the nation. The CPC led the formulation of the Constitution, which was a good constitution for a socialist country. In later practice, however, the Constitution was not strictly implemented, particularly in the Cultural Revolution when a series of serious errors were made and the authority of the Constitution and the law was trampled and therefore human rights were infringed upon. Is this leverage by which to opposethe leadership of the CPC? No. It was not the CPC leadership that obstructed the implementation of the Constitution and the law. It was obstruction and opposition to CPC leadership that harmed implementation of the Constitution and the law. Due to these profound lessons, the CPC, in correcting these wrongs, has advocated not only adherence to CPC leadership, but also the institutionalization and legalization of democracy and thus the rule of law. We are striving to integrate CPC leadership and the rule of law, and should neither ignore the authority of the Constitution and the law in the name of adherence to the leadership of the CPC, nor abandon the leadership of the CPC as an excuse for sticking to the rule of law.

 

Third, the historic mission of ensuring human rights in the process of advancing the rule of law is one of the biggest tests for the CPC. In modern times when worldviews are quite plural, advocating abandonment of leadership by the CPC and ignorance of laws and rules and violation of human rights all exist. The idea of the rule of law and the rule of the Constitution is tested again and again. The Decision makes it clear that strengthening and improving CPC leadership will solve the problem of coordinating CPC leadership and the socialist rule of law. Since the adoption of the reform and opening up policy, during the process of political restructuring, the CPC has redefined what the leadership of the CPC is. First, its leadership is mainly political, ideological and organizational leadership, with activities within this scope allowed by the Constitution and the law. What the CPC advocates should be legalized, through certain legal procedures, thus becoming the national will. The CPC Constitution approved by the 12th CPC National Congress stipulated that Party activities must be within the scope allowed by the Constitution and the law. Second, on the relationship between Party committees and the People’s Congress, the Executive Branch and the People’s Political Consultative Conference, the 15th CPC National Congress stipulated the principle that the Party should grasp the overall situation and coordinate all sides concerned. Third, the concrete mission of the CPC in leading the state and society has been defined as formulating big plans and principles, making legislative proposals, recommending key leading figures, popularizing ideological concepts, bringing into play the capability of the Party and its members, and sticking to governance by law. The Fourth Plenary Session of the 18th CPC Central Committee combined all these regulations and requirements related to the rule of law, and focused on strengthening and improving the leadership of the CPC in comprehensively advancing the rule of law and making general arrangements. The Party’s leadership in legislation, the Party’s guarantee in law enforcement, the Party’s support in the administration of justice and the Party’s leadership in abiding by the law all should be stressed. The CPC should combine the fundamental strategy of advancing the rule of law with the basic methods of governance through law. The CPC should combine its own role of grasping the overall situation with the work of the People’s Congress, the Executive Branch, the People’s Political Consultative Conference as well as judicial and procuratorial organs. The CPC should also combine its leadership in drafting the Constitution and the law with its activities within the scope allowed by the Constitution and the law.12 Meanwhile, the CPC should be good at using legal procedures to transform what it stands for into the national will, using legal procedures so that candidates recommended by the Party become leading officials of the government, governing the state and the society through the Executive Branch, and safeguarding the authority of the central leadership and the unity of the whole Party and the whole country through the system of democratic centralism.13 In essence, the consistency of CPC leadership and the socialist rule of law and the consistency of CPC leadership and protection for human rights are issues of practice.[page]

 

In general, in dealing with the relationship between CPC leadership and the rule of law and the rule of the Constitution and respecting and ensuring human rights, people should not counter pose these two. In practice, the CPC should improve its capability to advance the rule of law and to govern by law. After solving these problems both ideologically and practically, the CPC will find it easier to deal with the relationship between the Party and the rule of law, which is a core issue in legal construction. Therefore, the cause of human rights protection will proceed smoothly and so will the socialist rule of law with Chinese characteristics.

 

*LI Junru（李君如），Professor and vice president of the Chinese Society for Human Rights Studies.

 

1. Selected Works of Deng Xiaoping, 2nd edition, vol. 2, Beijing: People’s Press, 1994, p. 146.

 

2. Selected Works of Jiang Zemin, vol. 1, Beijing: People’s Press, 2006, p. 511.

 

3. Selected Works of Jiang Zemin, vol. 2, Beijing: People’s Press, 2006, p. 29.

 

4. Xi Jinping, “Speech at the Meeting of All Ranks in the Capital Commemorating the 30th Anniversary of the Adoption of the Current Constitution,” People’s Daily, Dec. 5, 2012.

 

5. Selected Works of Jiang Zemin, vol. 2, Beijing: People’s Press, 2006, p. 54.

 

6. Hu Jintao, “Letter to China Society for Human Rights Studies,” People’s Daily, Dec. 12, 2008.

 

7. Hu Jintao, “Adhering to socialism with Chinese characteristics, striving to comprehensively build a well-off society: A speech at the 18th National Congress of the Communist Party of China,” Beijing: People’s Press, 2012, p. 17.[page]

 

8. Xi Jinping, “Explanation regarding the CPC Central Committee Decision on Certain Key Issues on Comprehensively Advancing the Rule of Law,” People’s Daily, Oct. 29, 2014.

 

9. Xi Jinping, “Explanation on the Decision of the CPC Central Committee on Certain Key Issues on Comprehensively Advancing the Rule of Law,” People’s Daily, Oct. 29, 2014.

 

10. Ibid.

 

11. Ibid.

 

12. Decision of the CPC Central Committee on Certain Key Issues on Comprehensively Advancing the Rule of Law, Beijing: People’s Press, 2014, p. 5.

 

13. Ibid.