GU Chunde*

 

Abstract: The rule of law is a basic method for governing a state and symbolizes modern civilization. The rule of law in socialism with Chinese characteristics is deeply rooted in Chinese tradition, and is designed and led by the Communist Party of China (CPC). The rule of law is not only a means and method, but also a driving force and leading engine for the country. Chinese human rights are designed and led by the CPC and possess certain characteristics in terms of theory, path and system. They are in essence different from the Western rule of law and human rights. Human rights are the fundamental value and the ultimate goal of the rule of law and the rule of law is the confirmation and guarantee for human rights. Efforts should be made to promote legislative, law enforcement and judicial protection of human rights.

 

Keywords:   rule of law   human rights     fundamental value    judicial protection of human rights

 

Construction of the rule of law is closely associated with human rights. The theme, goal and core values of construction of the rule of law are the protection of human rights and such protection will definitely push forward and improve construction of the rule of law. Therefore, we should not blindly talk about reliance on the rule of law and construction of the rule of law while not paying attention to human rights protection. Also, we should not just highlight human rights protection while disregarding building the rule of law. We should also comprehensively advance judicial protection for human rights.[page]

 

 

Human rights and the rule of law are different concepts. The core meaning of human rights is the dignity of human beings, while the core meaning of the rule of law is restriction on public power and protection for individual rights. The two ideas are closely associated with each other. Without human rights, there is no rule of law. Without the rule of law, there are no human rights or the realization of human rights. The two are interconnected, interdependent, interactive, complementary and develop together.¹ In general, the relationship between human rights and the rule of law is: human rights are the fundamental value and the ultimate goal of the rule of law. The rule of law is the confirmation and the guarantee for human rights.

 

 

Human rights are the starting point and the basis of the rule of law. The basic rights of human beings are the rights to existence and development, civil and political rights, as well as economic, social and cultural rights, and are thus the basis for the rule of law. Legislation and enforcement of laws should begin with protecting the rights mentioned above, be conducive to safeguarding basic rights, protecting human dignity and personal interests, and balancing and adjusting social interests and social relations. The rule of law cannot be developed without the promotion of human rights. Without human rights as a basis, the rule of law can neither emerge nor exist, let alone fulfill its proper role. With social development, scientific and technological advancement, improvement of people’s livelihood, prosperity in literature and the arts, and enhancement of human rights, new social relations, social interests and human rights forms will necessarily emerge. So, it is necessary that they be adjusted through law. Based on this situation, there should be continuous abolishment, revision, enactment or explanation of laws. All these adjustment activities related to laws must benefit human rights protection.

 

Human rights determine the mission and content of the law. The mission of the law is fundamentally to protect the rights, freedoms and other legitimate interests of citizens based on the law, protect public and private property, safeguard social order, and safeguard socialist construction. These tasks are the concrete embodiment of human rights and ensure the realization of human rights. Therefore, human rights decide the mission of the rule of law. Meanwhile, the content of human rights is very broad, ranging from the rights to existence and development, and civil and political rights to economic, social and cultural rights. These rights decide the content of the rule of law. The rule of law must directly or indirectly reflect these basic rights. If laws do not ensure or specify such basic rights then this type of rule of law is not the rule of law needed by the people.[page]

 

Human rights encourage compliance and implementation of the rule of law and improvement of the rule of law. Laws are tools that adjust social relations, balance social interests and safeguard social order, and are also norms for people’s behavior. Although socialist laws rely on the power of the state to enforce them, what is more important is the people’s voluntary compliance with the law. Since socialist law takes protecting human rights as its core content and ultimate goal, and since socialist law is stipulated by the people and represents the common will and fundamental interests of the people, implementation of socialist law thus realizes the people’s will and interests. It realizes the content and requirement of socialist laws to protect human rights. Therefore, people must voluntarily abide by the law. In this sense, human rights may enhance compliance and implementation of the rule of law, as well as improve the rule of law.

 

 

Human rights can only be transformed from obligatory rights to legal rights through the affirmation of law, thus becoming the actual rights of citizens. The rule of law requires that laws begin and end with respecting and ensuring human rights. China has included respecting and ensuring human rights in the Constitution, confirming that respecting and ensuring human rights is the fundamental principle and core content of the Constitution and guides all legal aspects of protecting people’s rights and freedom. The basic rights and freedom for the people determined by the Constitution are the confirmation of human rights in China, the transformation of obligatory rights into legal rights, and the legalization of human rights.

 

The Constitution and other laws define the content and the scope of human rights, which are protected by the legal system. The Constitution directly, systematically and comprehensively defines the content and scope of various fundamental rights and freedoms, such as the rights to existence and development, individual rights and democratic rights. In the socialist legal system with Chinese characteristics, human rights-related laws all, either directly or indirectly, define the scope of human rights, which reflects the spirit of human rights. Evidence proves that the realization of China’s human rights is protected by law.[page]

 

The Constitution defines the procedures, principles, methods and approaches for the realization of human rights. The constitutional ruling on China’s national structure and governance, China’s political, economic and social institutions, China’s legal system and procedures, and compliance with the law by governmental institutions, social groups, political parties, the armed forces and the general public, all provide legal, institutional and principled protection for the realization of China’s human rights. In addition, the Criminal Procedure Law, the Civil Procedure Law and the Administrative Procedure Law all define the rights of defendants or other people involved in judicial actions, providing reliable legal protection for human rights.

 

The Constitution and laws also stipulate necessary restrictions on realizing rights and freedom, which protects the proper realization of the rights and freedom of the Chinese people. The Marxist view of rights and interests holds that rights and freedom are relative and restricted by law. Never in history has there been absolutely unrestricted rights and freedom. Rights and freedom for human beings are relative and restricted, rather than absolute and unrestricted. China’s Constitution clearly stipulates: “While exercising their own freedom and rights, the citizens of the People’s Republic of China should not harm the interests of the nation, society or the collective, or the legitimate rights and freedom of other citizens.” This stipulation is necessary and reasonable. This definition helps safeguard national, social, collective and individual rights and interests, ensuring the proper realization of rights and freedom. It is beneficial to the normal social order and orderliness in production, work, life and scientific research. It is beneficial to social harmony and the smooth development of China’s reform and opening-up and socialist construction. Therefore, all governmental institutions, social groups, political parties and citizens must, without exception, strictly abide by and carry out the Constitution and the law, and must not misuse individual rights and freedom.

 

 

Laws related to human rights are the prerequisite for ensuring and realizing human rights. Legal protection for human rights cannot be achieved without legislation on human rights. In the past more than 30 years since reform and opening-up, China has achieved rapid growth in legislation, with high quality and fruitful results. China has formed a socialist legal system with Chinese characteristics, with the Constitution at its core, mainly supported by constitutional laws, civil laws and commercial laws, and further complemented by other national laws, local laws and administrative regulations. All the laws and regulations of the legal system are closely connected with the protection of human rights. Some are laws directly protecting human rights. The Constitution stipulates the fundamental rights and responsibilities of citizens, saying the state “respects and ensures human rights.” Laws related to the Constitution, such as the Election Law, ensure people’s right to elect or be elected. The Law on the Autonomy of Ethnic Minority Regions ensures rights to equal opportunity and autonomy among ethnic minorities. The Law on Assembly, Demonstration and Protest ensures such rights of the people. The Law on Organization of Urban Residents’ Committees and the Law on Organization of Village Committees ensure the democratic rights of urban and rural residents, respectively. The laws on compulsory education, teacher, education, vocational education and higher education ensure people’s rights to education. The laws on lawyers and notarization ensure people’s rights in lawsuits and legal procedures. The laws on pharmaceutical management, prevention of contagious diseases and food safety ensure people’s rights to life and health. In the civil and commercial legal field, the laws on marriage, adoption and inheritance ensure such rights of the people. The general principles of the Civil Law and the Property Law ensure the rights of the people to private property. In the field of social law, the laws on protection for the disabled, protection for minors, protection of women’s rights and interests and protection of senior citizens’ rights and interests all ensure such rights. All these laws prove that China has established a legal system for human rights protection. With the development of China’s human rights cause, legislation on strengthening human rights protection should be enhanced in a bid to further improve the legal system for ensuring human rights. The Fourth Plenary Session of the 18th Central Committee of the Communist Party of China emphasized improving the socialist legal system with Chinese characteristics with the Constitution at its core. It emphasized strengthening legislation in key areas, particularly in political, economic and social aspects, which greatly concern people’s livelihood.² Efforts should be made to improve the quality of legislation, push forward legislation in a scientific and democratic way, improve legislative mechanisms and procedures, make a great effort to create legislation that complies with the spirit of the Constitution, reflect the people’s wishes and earnestly safeguard human rights. Efforts should also be made to enhance pertinence, timeliness, systematization and operability. Legislation should play a leading role in protecting human rights.[page]

 

 

Practice has proven that governmental administrative organs are responsible for carrying out more than 80 percent of laws and regulations, including laws and regulations related to human rights. Therefore, governmental administrative organs are key players in enforcing human rights articles in laws and protecting human rights for the Chinese people. The guiding principle of administrative organs is to conduct their work according to the law and carry out the law for the people.

 

By revising the Constitution, enacting laws, regulations and policies, gradually establishing and perfecting relevant institutions, standardizing the state’s administrative organs and the behavior of their administrative personnel, the state had gradually stepped onto the track of the rule of law and receives supervision from the law and the people. The Law on Administrative Licensing stipulates that governmental administrative organizations have to define the scope, power limits, administrative procedures and financial guarantees in administering economic and social affairs. The Law on Administrative Punishments stipulates that governmental administrative organs have to define the boundaries of administrative punishments and set up measures to ensure and supervise administration when ensuring public order and protecting citizens, corporate entities and other social groups. The Administrative Reconsideration Law stipulates that citizens, corporate entities and other social groups may apply to higher administrative organizations for administrative reconsideration if they think their legitimate rights have been violated by the illegal or improper activities of governmental or administrative organizations. Higher administrative organizations are responsible for accepting such applications and responding with administrative reconsideration decisions.

In standardizing administrative organs and their personnel, it is vital to improve the quality of administrative officials and police officers. The Civil Service Law and the Law on the People’s Police have relevant stipulations. The Civil Service Law stipulates standardizes management for public servants, sticking to the principles of openness, equality, competition and merit-based recruitment, ensuring the legitimate rights of public servants, strengthening supervision over public servants in order to improve their quality, promoting diligence and integrity, and improving their administrative skills. The Law on People’s Police stipulates the mission of police as safeguarding national security, maintaining social order, protecting citizens’ personal safety, liberty and private property, protecting public property, as well as preventing, stopping and punishing crimes and other illegal activities. Strengthening capacity-building for public servants and police officers and improving administrative capability to benefit the people greatly enhance the efficiency and performance of governmental administrative organs and their workers, which helps to realize protection for human rights.[page]

 

In order to comprehensively push forward administration according to the law, the State Council in March issued an implementation guideline for pushing forward administration by law nationwide. The report to the 18th CPC National Congress listed achieving a rule-of-law government as one of the targets of comprehensively building a moderately prosperous society and comprehensively deepening reform, and also proposed speeding up the construction of a rule-of-law government.³

 

The Fourth Plenary Session of the 18th CPC Central Committee emphasized speeding up the construction of a rule-of-law government, with scientifically defined functions, legally specified duties and responsibilities, strict law enforcement, transparency and fairness, integrity and efficiency, and compliance with laws and rules. The plenary session pushed an inventory mechanism, a review mechanism for overhauling the legality of making key decisions, a responsibility mechanism that holds officials accountable for life for key decisions they have made and an investigative mechanism for ascertaining responsibility, as well as a system connecting administrative enforcement and the criminal justice system.⁴ In pursuit of rule-of-law government, governmental administrative organs have to perform their duties in line with the law; persist in doing what the law requires them to do and not do what the law does not authorize them to do; prohibit any organizations or individuals from having the power or privilege to break the law; protect people’s rights to equal participation and development; and earnestly ensure human rights.

 

 

 Judicial protection is the last line of defense in human rights protection. In line with China’s Constitution and laws, the power to hold trials and the power to prosecute cases are exercised independently by the people’s courts and the people’s procuratorates, respectively.[page]

 

 

People’s courts in China are where trials are held. In line with the Constitution and the law, the people’s courts independently exercise their power to hold trials without any interference from administrative organizations, social groups or individuals. With some exceptions required by law, the people’s courts conduct open trials. The defendant has the right to defense and this right should be ensured by the people’s courts. A person is innocent until proven guilty by the people’s courts. The people’s courts, through trials, punish people who commit crimes and guarantee human rights and other civil rights. The people’s courts employ the defense system in criminal trials, weighing evidence rather than oral confessions, adopting the judicial policy of balancing strict punishment and necessary leniency, and ensuring the human rights of defendants and criminal suspects. The people’s courts work to ensure human rights and civil rights as well as the civil rights of people involved in lawsuits, and protect the legitimate rights of citizens from being infringed upon by governmental or administrative organs. According to the Decision made by the CPC Central Committee, the people’s courts have carried out restructuring of the judicial system and work mechanism, optimizing the allocation of judicial power and standardizing judicial activities in order to build a fair, efficient and authoritative socialist judicial system.

 

In order to earnestly ensure people’s rights to information, participation, expression and supervision, the Supreme People’s Court has vigorously pushed forward innovation of trial management and continuously sped up the construction of judicial democracy and judicial transparency. In December 2009, the Supreme People’s Court issued six rules on judicial transparency, specifying transparency requirements for case filing, trials, carrying out the law, hearings, documentation and trial matters, emphasizing the legal, comprehensive and timely publicity of trial information, transparency of trial procedures and transparency of decisions. The Supreme People’s Court asked people’s courts at various levels to earnestly emancipate their minds, innovate their ideas, take bold steps, combine active and eager adoption of open and transparent methods with full protection of people’s legal rights in lawsuits, and improve the level of judicial democracy. At the same time, the Supreme People’s Court asked courts nationwide to establish and improve the mechanism for inviting deputies to people’s congresses and members of people’s political consultative conferences, together with people from other fields, to attend trials, push forward the open court publicity program, establish and improve the press conference mechanism, earnestly ensure people’s rights to information, participation, expression and supervision, and constantly enhance the credibility of people’s courts.[page]

 

In June 2010, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice issued rules on excluding evidence illegally collected in criminal cases and rules on reviewing and judging evidence in death penalty cases, clarifying that evidence or confessions collected by torture or other illegal means cannot be used in trials, and specifying standards and procedures for excluding such evidence. The death penalty should be employed more cautiously and judicial procedures related to the death penalty should always be upheld. In reviewing death penalty verdicts, the Supreme People’s Court must bring every suspect in death penalty cases into court, fully hearing their argument and earnestly ensuring the litigation rights of defendants.

 

As required by the Third Plenary Session of the 18th CPC Central Committee, a new round of judicial reform is being carried out nationwide. Shanghai and five other provinces or municipalities, aiming at achieving social equality and justice, are carrying out reform pilot projects related to judicial personnel categorization; judicial responsibility; collective decisions by head judges and collegiate panels regarding trials without discussion or approval from superiors; overall management of judicial personnel below the provincial level; uniform nomination of judges and prosecutors for appointment or dismissal at different levels; and the finance of all expenditures by the provincial-level government.

 

The report to the 18th CPC National Congress said that one key goal of comprehensively deepening reform is “comprehensively implementing the fundamental strategy of the rule of law, building a rule-of-law government, increasing the credibility of judicial organs and earnestly respecting and ensuring human rights.”⁵ The report also stressed further deepening judicial restructuring, sticking to and improving the socialist judicial system with Chinese characteristics, and ensuring the independence of trial and prosecutorial authorities.⁶

 

The Fourth Plenary Session of the 18th CPC Central Committee emphasized judicial protection for human rights, and the rights of defendants and others involved in lawsuits to information, expression, defense, application and appeal, implementing the principle of conviction according to the law, the principle of “innocent until proved guilty” and the principle of excluding illegally collected evidence, and improving judicial measures related to restricting people’s freedom. The plenary session also proposed optimizing the judicial structure; allocating judicial power more effectively; pushing forward pilot projects separating the authority to carry out trials and law enforcement authority; establishing a circuit court for the Supreme People’s Court; and exploring establishing transregional people’s courts and people’s procuratorates.⁷ All such efforts are significant to balancing the authority related to policing, prosecution and conducting trials; solving the problem of intervention by executive authorities in the matters of judicial authorities; improving judicial protection for human rights; and earnestly ensuring human rights.[page]

 

 

People’s procuratorates have the responsibility to crack down on crime, bribery, malfeasance and other abuses of power, supervise litigation in accordance with the law, and safeguard judicial justice and unification of the legal system. In supervising criminal litigation, people’s procuratorates comprehensively supervise case filing, criminal investigation, trial and law enforcement, putting the same weight on cracking down on crime and ensuring human rights. In supervision of civil and administrative litigation, people’s procuratorates equally protect the legitimate rights of the various sides involved, particularly supervising cases of injustice resulting from the violation of legal procedures, corruption, misuse of the law, favoritism and irregularity. In recent years, people’s procuratorates reformed their system of management and work mechanisms, clarifying their nature, mission and power and standardizing the independent power of prosecutorial authorities. People’s procuratorates have comprehensively pushed forward openness in procuratorial affairs; established a rights and responsibilities notification mechanism for people involved in litigation; set up an open review system for non-prosecution cases, criminal appeals and civil administrative protests; established a mechanism for safeguarding lawyers’ activities in criminal litigation; ensured judicial justice; firmly investigated and punished illegal detention, harming elections as well as retaliation and frame-ups; and earnestly ensured human rights and civil rights. According to the requirements of the third and fourth plenary sessions of the 18th CPC Central Committee, a new round of reform involving the procuratorial system is now being carried out nationwide. This reform is a key part of judicial reform in China, with an aim to build and improve the prosecution mechanism with Chinese characteristics and work better to ensure human rights.

 

 

China has gradually restored and improved the lawyer system since 1978, with the Lawyer Law being enacted in May 1996. The law stipulates that the job of lawyers is to safeguard the legitimate rights of people involved in lawsuits and endeavor to ensure the proper use of the law, specifying the qualifications and conditions of lawyers, lawyers’ rights in litigation, legal protection for lawyers in litigation and protection of personal rights while performing professional activities. Based on new conditions and situations arising since the inception of reform and opening-up, new requirements for comprehensively implementing the fundamental strategy of the rule of law and speeding up the construction of a rule-of-law country, and guided by the socialist legal concept, the country has issued relevant regulations and documents, specifying lawyers’ rights to meeting with clients, reading files, and investigating and collecting evidence, promoting the litigation business of lawyers, and ensuring that lawyers perform their duties in line with the law and play a bigger role in the judicial process. A key responsibility of lawyers is to defend people charged with illegal activities. The Criminal Procedural Law stipulates that in trials defendants have the right to a defense and people’s courts have the responsibility to guarantee a defense for defendants. In addition to defending oneself, defendants may hire lawyers, close relatives or other citizens for their defense. The establishment and implementation of the defense system has helped ensure the legitimate rights of defendants.[page]

 

The Fourth Plenary Session of the 18th CPC Central Committee also called for improving the people’s assessor system, people’s supervisory system, legal remedy system and legal aid system,⁸ which are designed to safeguard and realize judicial justice and earnestly ensure human rights and civil rights.

 

 

In general, protection of human rights is the starting point and goal of legislation, law enforcement and the administration of justice, permeating the whole process. In comprehensively advancing the rule of law, establishing the rule-of-law system with Chinese characteristics and improving the legal system for protecting human rights, China must safeguard people’s rights in line with the law in order to safeguard social equality and justice, implement legal protection for civil rights and a legal system that reflects equality in rights, opportunities and rules, implement the protection of people’s personal rights, property rights, basic political rights and other rights, and implement legal protection for people’s economic, cultural and social rights. In the process of realizing the legalization of human rights protection, the awareness of respecting and ensuring human rights in society, particularly among leading cadres, should be improved and human rights assistance channels should be further diversified in a bid to achieve sustained development for China’s human rights cause.

 

* GU Chunde(谷春德), professor at the School of Law,  Renmin University of China, Beijing, China.

 

1. Gu Chunde, Human Rights Theory and Practice Studies, Beijing: Renmin University of China Press, 2013.

 

2. Decision of the CPC Central Committee on Certain Major Issues on Comprehensively Advancing the Rule of Law, Beijing: People’s Press, 2014.

 

3. Hu Jintao, “Firmly Sticking to Socialism with Chinese Characteristics and Striving for Building a Moderately Prosperous Society, a report to the 18th CPC National Congress, ” Beijing: People’s Press, 2012.[page]

 

4. Ibid.

 

5. Ibid.

 

6. Ibid.

 

7. See supra note 2.

 

8. Ibid.