Abstract: A market economy requires the individual rights of cit-izens be protected, and that the exercising of those rights be regulated, whose realization depends on the legalization of human rights protec-tion. On the one hand, individual rights must be protected by law. On the other hand, a law-based society needs to be built so the boundaries of individual rights are clear, the exercising of those rights are regu-lated, conflicts between rights can be resolved through the courts, and the personal infringement of others’ rights and the overall interests of the society is prohibited by law. During the 40 years of China’s reform and opening-up in China, the promotion of the legal protection of hu-man rights mainly lies in three aspects: first, the important role of the rule of law plays in protecting human rights has been clarified; second, the four steps of the rule of law (scientific legislation, strict law enforcement, judicial justice and observance of the law by all Chinese citizens) have been strengthened to safeguard human rights fully and effectively; third, the Chinese human rights system under the rule of law has gradually been aligned with international norms.

 

Keywords: construction of rule of law    human rights protection    reform and opening up    legalization

 

China’s reform and opening-up over the past 40 years have not only been the process of establishing the socialist market economy, but also a process in which the interaction between social changes and social system changes have provided the impetus, conditions and system guarantees for the development of China’s human rights cause. Reform of the economic system to establish a socialist market economy has provided the basis and the conditions for the realization of individual freedom and equal rights, while the widening gap in income and property resulting from the establishing of a socialist market economy has required guaranteeing social rights and integrating guarantees for all vulnerable groups into social rights. The socialist market economy system requires endowing citizens with more individual rights and regulating the exercising of those rights, whose realization depends on the legalization for human rights protection. On the one hand, the legal protection of individual rights needs the rule of law and a law-based government. On the other hand, a law-based society needs to be built so as to establish clear boDundaries for individual rights, regulate the exercising of those rights, provide legal resolution for rights conflicts, and prevent infringements on the rights of others and the overall interests of the society.

 

The Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law (Decision of Comprehensively Advancing Governance According to Law), adopted at the fourth Plenary Session of the 18th Central Committee of the Communist Party of China (CPC Central Committee ), clearly analyzed the problems in safeguarding the rights of citizens. It points out: “We must soberly be aware that, in comparison with the development needs of the undertakings of the Party and the State, with the expectations of the masses, and with the goal of modernizing our governing system and ability, construction of rule of law still displays many problems where it is not adapted or unsuited, which is mainly manifested as: some laws and regulations have not been able to completely reflect objective laws and the will of the people, so that they are not strong in terms of focus or feasibility, and tendencies of departmentalization, turf battles and shifting of responsibility in legislative work are relatively prominent. The phenomena that laws exist but are not followed, law enforcement is not strict and law-breakers aren’t punished are relatively grave, separation of powers and responsibilities in the law enforcement, multi-headed law enforcement and selective law enforcement still exist, law enforcement and the judiciary are quite prominently not standardized, not strict, not transparent and uncivilized, and the masses strongly react against the problems of judicial unfairness and corruption. The consciousness of a number of members of society to abide by the law, trust in the law, respect the law, use the law, and safeguard their rights according to the law is not strong, some State personnel and especially leading cadres’ consciousness about handling affairs according to the law is not strong, their abilities are insufficient, and it still occurs that laws are knowingly violated, one’s word replaces the law, the law is suppressed through power, and the law is bent for relatives and friends. These problems violate the principles of socialist rule of law, harm the interests of the masses, impede the development of the undertakings of the Party and the country, and we must make great efforts to resolve them.”¹

 

During the 40 years of re-form and opening-up in China, the promotion of the legal protection of human rights has been mainly in three aspects: first, the important role the construction of rule of law played in human rights protection has been clari-fied; second, the four steps of the rule of law have been continuously strengthened to safeguard human rights fully and effectively; third, the Chinese human rights system of rule of law is gradually in line with the international standards.

 

 

The recognition of the important role of the rule of law in safeguarding human rights derives from past political experience and the realistic demand of establishing a market economy system, this has meant the transition from “legal system construc-tion” to “construction of the rule of law.”

 

After suffering from the great destruction caused by the “Cultural Revolution,” the Party, the government and the people made a deep reflection on the important role of the rule of law in safeguarding individual rights. The Communique of the Third Plenary Session of the 11th Communist Party of China Central Committee stated: “In order to safeguard people’s democracy, we must strengthen the socialist legal system which shall make democracy institutionalized and legalized, so that the system and laws shall have stability, continuity and great authority. In the end there must be laws to go by, laws must be observed and strictly enforced, and law-breakers must be pros-ecuted.”²

 

The system of a market economy which requires the protection of individual rights by rule of law is a more important internal impetus to promote the legalization of human rights. A report to the 14th National Congress of the Communist Party of China pointed out: “Great importance shall be attached to the construction of the legal system. It is an urgent requirement for the establishment of the socialist market economy system to strengthen the legislation, especially to formulate and improve the laws and regulations that guarantee reform and opening-up, strengthen macroeconomic management and standardize microeconomic behavior.” ³ The Decision on Several Major Issues Concerning Establishing a Socialist Market Economy System (Decision Concerning Establishing a Market Economy System), adopted by the Third Plenary Session of 14th Communist Party of China Central Committee, points out more clearly: “The establishment and perfection of the socialist market economy system must be regulated and safeguarded by a complete legal system. We should attach great importance to the construction of the legal system, so as to achieve the unification of reform, opening-up and legal system construction, and learn to manage the economy by means of the law.”⁴ A report to 15th Communist Party of China National Congress put forward, “the smooth progress of the undertakings of the Party and the State inevitably requires that there must be laws to go by, that laws must be observed and strictly enforced, and that law-breakers must be prosecuted” and we should “develop democracy, improve the legal system, and build a socialist country ruled by law.”⁵

 

Since the 15th CPC National Congress, the Party and the State have linked the rule of law to the protection of human rights more directly. The report to the 15th CPC National Congress proposed that the Communist Party of China "ensure that people enjoy a wide range of rights and freedoms according to law, and respect and safeguard human rights.”⁶ The Decision on Several Major Issues Concerning Building a Socialist Harmonious Society (Decision Concerning Building a Harmonious Society), adopted by the Sixth Plenary Session of the 16th CPC Central Committee, noted that to “safeguard the unity and dignity of the socialist legal system and establish the authority of the Socialist legal system. We should uphold the principle that all citizens are equal before the law, respect and guarantee human rights, and guarantee citizens’ rights and freedoms according to law.”⁷ The report to the 17th CPC National Congress proposed “comprehensively implementing the rule of law as a fundamental principle and speed up the building of a socialist country under the rule of law. The rule of law constitutes the essential requirement of socialist democracy.” It also proposed respect for and the safeguarding of human rights, and ensuring "the equal right to participation and development for all members of society in accordance with the law.”⁸ The report to the 18th CPC National Congress indicated that “the rule of law should be fully implemented as a basic strategy, a law-based government should basically function, judicial credibility should be steadily enhanced, and human rights should be fully respected and protected,” and “we should give greater scope to the important role the rule of law plays in the country’s governance and in social management, uphold the unity, sanctity and authority of the country’s legal system and ensure that the people enjoy extensive rights and freedoms as prescribed by law.”⁹ The Decision on Com-prehensively Advancing Governance According to Law, passed by the Fourth Plenary Session of the 18th Communist Party of China Central Committee states that “the people’s rights and interests must rely on legal guarantees” and “we must persist in the fact that construction of rule of law is for the people, relies on the people, benefits the people and protects the people, make guaranteeing the people’s basic rights and interests into a starting point and stopover point, guarantee that the people enjoy broad rights and freedoms according to the law, bear the duties they should, safeguard social fairness and justice, and stimulate common prosperity.”¹⁰ The report to the 19th CPC National Congress proposed that “we should uphold the unity, sanctity, and authority of China’s legal system, and strengthen legal protection for human rights to ensure that the people enjoy extensive rights and freedoms as prescribed by the law.”¹¹

 

Since the 18th CPC National Congress, the Party and the State have emphasized the integrated construction of a law-based country, government and society, guaranteeing citizens a wide range of rights and freedoms. The report to 18th CPC National Congress states law-based governance of the country should be promoted in an all-round way. "The rule of law is the basic way for running the country.”¹² The Decision on Some Major Issues Concerning Comprehensively Deepening Reform (Decision Concerning Comprehensive Deepening Reform), adopted by the Third Plenary Ses-sion of the 18th Communist Party of China Central Committee, points out that “to build a China under the rule of law, we must uphold the unity of rule of law, law-based government and law-based administration, and the integral development of a law-based country, government and society as a whole.”¹³ The report to the 19th CPC National Congress proposed a goal for the construction of rule of law, namely, that by 2035 the rule of law for the country, the government, and society be “basically in place.”¹⁴ It also set up a central leading group for advancing law-based governance in all areas to exercise unified leadership over the initiative to build the rule of law in China.

 

 

In the process of promoting the guarantee of citizens’ rights by rule of law, the strengthening of legislation was first emphasized to address the lack of relevant laws, then judicial justice was emphasized because of the problems in upholding the judicial guarantee for human rights, and at the 18th CPC National Congress it was decided to further establish the construction of the rule of law by means of four steps namely legislation, law enforcement, justice and being law abiding. The report to the 18th CPC National Congress pointed out that “we should make laws in a scientific way, enforce them strictly, administer justice impartially, and ensure that everyone abides by the law. We must make sure that all are equal before the law and that laws are observed and strictly enforced and lawbreakers are prosecuted.”¹⁵ The Decision on Comprehensively Advancing Governance According to the Law approved by the Fourth Plenary Session of the 18th CPC Central Committee, emphasized “realizing scientific legislation, strict law enforcement, judicial fairness and respect for the law among the entire population, and moving forward the modernization of the national governing system and our governing ability.”¹⁶

 

 

To guarantee human rights in accordance with law, we must first establish relevant laws and regulations. At the beginning of reform and opening-up with regards the reality of the lack of human rights legislation, the Communique of the Third Plenary Session of the 11th CPC Central Committee put forward a requirement to strength-en the legislation, “from now on, the legislative work should be placed among the important agenda of the National People’s Congress (NPC) and its Standing Com-mittee.”¹⁷ The report to the 15th CPC National Congress called for “strengthening the legislative work, improving the quality of legislation, and forming a socialist legal system with Chinese characteristics by 2010.”¹⁸

 

The legislative work began with the economy. The Decision on Establishing a Market Economy System delivered at the Third Plenary Session of the 14th CPC Cen-tral Committee emphasized that we should “abide by the principles prescribed in the Constitution, speed up economic legislation and further improve civil and commercial law, criminal law, and relevant laws concerning national institutions and administra-tive management, so as to initially establish a legal system which is adapted to the socialist market economy at the end of this century.”¹⁹ The report to the 16 th CPC National Congress proposed that “to adapt to the new situation characterized by the development of a socialist market economy, all-round social progress and China’s accession to the WTO, we will strengthen legislation and improve its quality and we will formulate a socialist system of laws with Chinese characteristics by the year 2010.” “We must safeguard the uniformity and sanctity of the legal system and prevent or overcome local and departmental protectionism.”²⁰ The Decision on Several Issues Concerning Perfecting the Socialist Market Economy System, passed at the Third Plenary Session of the 16th CPC Central Committee, put forward more specific requirements for the economic legislation, especially emphasizing “promoting the construction of a comprehensive economic legal system,” “according to the basic strategy of administering the country according to law, focusing on establishing institutions, regulating powers and responsibilities, safeguarding rights and interests, and strengthening economic legislation. Perfecting the legal system for market subjects and intermediary organizations, in order to make all kinds of market subjects have full capacity for behaviors and responsibility. Improving the legal system of property rights, to standardize and rationalize relationships between property rights and protect various property rights and interests. Perfecting the legal system of market transaction to guarantee the freedom of contract and transaction security, and maintain fair com-petition. Improving laws and regulations of budget, taxation, finance and investment, to standardize economic regulation and market supervision. Improving laws and reg-ulations of labor, employment and social security to protect the legal rights and inter-ests of workers and citizens. And improving laws and regulations of the society and sustainable development, to promote economic development and overall social prog-ress.”²¹ The Decision on Comprehensively Advancing Governance According to Law, passed by the fourth Plenary Session of the 18th CPC Central Committee, proposed that “the Socialist market economy essentially is an economy ruled by law.” To ensure that the market plays a decisive role in the allocation of resources and rein in the role of government better, “we must make protecting property rights, upholding contracts, unified markets, fair exchange, fair competition and effective supervision the basic orientations, and perfect the legal system for the socialist market economy. Complete property rights protection systems with fairness at the core, strengthen protection of the property rights of economic organizations of all kinds of ownership systems and of natural persons, and clean away provisions in laws and regulations that violate fairness. Innovate property rights protection systems that are adapted to the varied forms in which the public ownership system manifests itself, and strengthen protection for State-owned and collective capital ownership rights, business rights and the proper-ty rights of all kinds of corporate legal persons. The State protects enterprises to use their legal person’s property rights to operate autonomously according to the law, and assume responsibility for profit and loss, who are entitled to refuse demands from any organization and individual that have no legal basis. Strengthen legislation on corpo-rate social responsibility. Perfect a property rights system and an intellectual property rights system that encourage innovation, and structures and mechanisms to stimulate the transformation of scientific and technological achievements.”²²

 

The Decision on Building a Harmonious Society, adopted by the Sixth Plenary Session of the 16th CPC Central Committee, starting from the idea of “consolidating the legal basis for social harmony,” on the one hand, emphasized “adhering to scientific legislation and democratic legislation,” on the other hand, it further extended the legislative focus to the political and social fields, to “perfect democratic politics, safeguard civil rights, promote social undertakings, perfect social security, regulate social organizations, and strengthen laws and regulations on social management and other aspects.”²³ The report to the 17th CPC National Congress emphasized that “we must persist in scientific and democratic legislation to improve the socialist law system with Chinese characteristics.”²⁴

 

Since the 18th CPC National Congress, while emphasizing scientific legislation, legislation for the people, democratic legislation and legislation in accordance with the law were further emphasized so as to protect citizens’ human rights by means of good laws and guarantee their right to orderly participation in the legislative process. The report to the 18th National Congress put forward that “we should improve the socialist system of laws with Chinese characteristics, strengthen legislation in key areas, and expand channels for people’s orderly participation in the legislative process.”²⁵ The Decision on Comprehensively Advancing Governance According to the Law ap-proved by the fourth Plenary Session of the 18th CPC Central Committee, proposed to “perfect the legislative system,” “deeply advance scientific legislation and democratic legislation,” and “strengthen legislation in focus areas. Guarantee citizens’ rights according to the law, accelerate the perfection of the legal system to reflect fair rights, fair opportunities and fair rules, protect citizens’ personal rights, property rights, basic political rights and rights in all other areas against infringement, guarantee that citi-zens’ economic, cultural, social and all other rights are implemented, so as to realize the legalization of citizens’ rights protections,” and “complete the channels and methods for citizen’s to obtain relief for infringements on their rights.”²⁶ The report to 19th CPC National Congress further put forward that “we will carry out lawmaking in a well-conceived and democratic way and in accordance with law, so that good laws are made to promote development and ensure good governance.”²⁷

 

 

Ensuring judicial justice is to safeguard the right of citizens to a fair trial, which is not only an important human right, but also an important way to protect other human rights. The Decision on Establishing a Market Economy System delivered at the third Plenary Session of the 14th CPC Central Committee proposed reforms to perfecting the judicial system, to “punish criminal offenses and economic crimes according to law, and deal with economic and civil disputes in time.”²⁸ The report to the 16th CPC National Congress put forward that “we should safeguard judicial justice,” and “a so-cialist judicial system must guarantee fairness and justice throughout the whole society. In accordance with the requirements of judicial justice and strict law enforcement, we should improve the setups of judicial organs, the delimitation of their functions and powers and their management systems so as to form a sound judicial system featuring clearly specified powers and responsibilities, mutual coordination and restraint and highly efficient operation.”²⁹ The Decision on Building a Harmonious Society, adopted by the Sixth Plenary Session of the 16th CPC Central Committee, proposed that to perfect the judicial system and mechanism, and strengthen the judicial safeguard for social harmony. “We should uphold justice for the people, ensure judicial justice, pro-mote the reform of the judicial system and working mechanism, build a fair, efficient and authoritative socialist judicial system and play the role of justice in safeguarding fairness and justice.”³⁰ The report to the 17th CPC National Congress pointed out that “we need to deepen the reform of the judicial system, optimize the distribution of judicial functions and powers, standardize judicial practices, and build a fair, efficient and authoritative socialist judiciary system.”³¹ The Decision on Comprehensively Deepen-ing Reform adopted by the Third Plenary Session of the 18th CPC Central Committee put forward that “we will deepen reform of the judicial system, accelerate the building of a just, efficient and authoritative social judicial system to safeguard people’s rights and interests, and ensure that the people are satisfied with the equality and justice in every court verdict.”³² The Decision on Comprehensively Advancing Governance According to Law , passed by the Fourth Plenary Session of the 18 th CPC Central Committee, stated that “fairness is the lifeline of rule of law. Judicial fairness has an important role in leading social justice, and judicial unfairness has a fatally damaging effect on social justice. We must improve the judicial administration system and the operating mechanisms for judicial power, standardize judicial conduct, strengthen supervision of judicial activities, and strive to have the people feel fairness and justice in every judicial case” and “persist in a people’s judiciary for the people, rely on the people to promote a just judiciary, and protect the people’s rights and interests through a just judiciary.”³³ The report of the 19th National Congress pointed out that “we will carry out comprehensive and integrated reform of the judicial system and enforce judicial accountability in all respects, so that the people can see in every judicial case that justice is served.”³⁴

 

To ensure a just judiciary involves three important aspects: first, guaranteeing the judicial organs and procuratorial organs can exercise their powers independently; second, to follow the justice principle and legal procedures in the trial process; and third, to protect the lawful rights of parties involved in a trial.

 

The principle that judicial organs and procuratorial organs should exercise judi-cial and procuratorial power independently was proposed in the early days of reform and opening-up. The Communique of the Third Plenary Session of the 11th CPC Central Committee required that “the procuratorial and judicial organs should maintain their due independence, be faithful to the law and the system, to the interests of the people, and to the facts.”³⁵ The report to the 14th CPC National Congress called for safeguarding the people’s Courts and procuratorates independence according to law.³⁶ The report to the 15th CPC National Congress proposed that “we shall promote reform of judicial affairs to ensure institutionally that the judicial organs are in position to exercise adjudicative and procuratorial powers independently and fairly according to law.”³⁷ The report to the 16th CPC National Congress pointed out that “we should institutionally ensure that the judicial and procuratorial organs are in a position to exercise adjudicative and procuratorial powers independently and impartially according to law... We should reform the working mechanisms of judicial organs and the management system of their human, financial and material resources and gradually separate their judicial adjudication and procuratorial work from their administrative affairs. We will tighten supervision over the judicial work and punish corruption in this field.”³⁸ The report to the 17th CPC National Congress stated that we should “ensure that courts and procuratorates exercise their respective powers independently and impartially in accordance with the law.”³⁹ The report to the 18th CPC National Congress required that “we should continue to deepen reform of the judicial structure, uphold and improve the socialist judicial system with Chinese characteristics, and ensure that judicial and procuratorial bodies independently and impartially exercise their respective powers pursuant to law.”⁴⁰ The Decision on Comprehensively Deepening Reform, adopted by the Third Plenary Session of the 18th CPC Central Committee, called for “ensuring the independent exercising of judicial and procuratorial power in accordance with the law” and stated that “we will reform the judicial committee system, improve the re-sponsibility system of handling cases by the presiding judge and the collegiate bench, by which the judges hand down verdicts and the collegiate bench is responsible for carrying them out. We will clarify the functions of the courts at all levels, and stan-dardize their supervision through the Judicial hierarchy.”⁴¹ The Decision on Compre-hensively Advancing Governance According to Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee requires “perfecting the system of ensur-ing independent and impartial exercise of judicial and prosecutorial power according to Law.”⁴²

 

Judicial trials should follow the principles for a fair trial and legal procedures, including presumption of innocence, legally prescribed punishment and exclusion of illegal evidence. For miscarriages of justice caused by violating the principle of fair trial and lawful procedures, the responsibility should be identified promptly and the State should give compensation. The report to the 15th CPC National Congress proposed to “establish a system for investigating and prosecuting anyone who is held accountable for unjust or misjudged cases.”⁴³ The report to the 16th CPC National Congress point-ed out that “we should improve judicial proceedings and protect the legitimate rights and interests of citizens and legal persons.”⁴⁴ The Decision on Building a Harmonious Society, adopted by the Sixth Plenary Session of the 16th CPC Central Committee put forward that we should “improve the litigation system, prosecutorial supervision, penalty enforcement, educational correction, forensic expertise, criminal compensation, judicial examination and others. Strengthen the judicial democratic construction, and improve systems of the public trial, people’s assessors, people’s supervisors and others, so as to play the role of lawyers, notarization, reconciliation, mediation and arbi-tration,” and we should “strengthen the judicial protection of human rights, and carry out litigation activities strictly in accordance with the legal principles and procedures. Improve the implementation mechanism to strengthen and improve the implementa-tions. Uphold the judicial integrity, and investigate and affix legal liability such acts as bending laws for personal interests, and malfeasance.”⁴⁵ The Decision on Comprehensively Deepening Reform, adopted by the Third Plenary Session of the 18th CPC Central Committee, emphasized “improving the judicial system to protect human rights. The state respects and protects human rights. We will further standardize the legal procedures for sealing, sequestering, freezing and confiscating properties involved in a legal case. We will improve the mechanism for preventing and correcting wrong cases and the accountability system, prohibit extorting confession by torture, corporal punishment and maltreatment, and strictly implement rules that illegal evidences are not adopted. We will gradually reduce the number of charges that could lead to death penalty” and “we will have more open trials, make the procuratorial work more trans-parent, and record and keep all court files. We will increase the persuasiveness of legal instruments and press ahead with publicizing court ruling documents that have come into effect. We must strictly regulate the procedures of sentence commuting, release on parole and medical parole, thereby enhancing the supervision system. We will extensively implement the people’s assessor system and people’s supervisor system to expand channels for the people to participate in legal affairs. We will abolish laojiao, or re-education through labor, improve laws for the punishment and correction of unlawful and criminal acts, and perfect the community correction system.”⁴⁶ The Decision on Comprehensively Advancing Governance According to Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee emphasized the need to “complete and implement legal systems for principles such as requiring crimes be provided for by law, not punishing in cases in doubt, and the exclusion of illegal evidence. Improve judicial oversight of judicial measures and investigatory methods that limit personal freedom, increase prevention against confessions extracted through torture and illegally acquired evidence at their source, complete effective safeguards against unjust, false and wrongfully decided cases, and mechanisms for their prompt correction.”⁴⁷

 

The legal rights of the parties shall be guaranteed in the course of trial, including the right to know, the right of statement, the right to debate, the right to application, the right to petition, the right to receive legal aid, and the right to obtain compensation according to law. The Decision on Establishing a Market Economy System delivered at the Third Plenary Session of the 14th CPC Central Committee, stressed the need to “establish and improve institutions of legal services.”⁴⁸ The Decision on Building a Harmonious Society, adopted by the Sixth Plenary Session of the 16th CPC Central Committee put forward that “we should strengthen the judicial relief to reduce the litigation costs of poor people. Perfect circuit trial, expand the application of summary procedures, and implement system of informing parties their rights and obligations, to facilitate the public lawsuit. Standardize fees of litigation, lawyers, arbitration.”⁴⁹ The Decision on Comprehensively Deepening Reform, adopted by the Third Plenary Session of the 18th CPC Central Committee, stated that: “we will improve the national judicial relief and legal aid system. We will improve the mechanism for protecting lawyers’ rights to practice while punishing illegal practice, strengthen professional ethics and give full play to the important role of lawyers in safeguarding the legitimate rights and interests of citizens and legal persons in accordance with the law.”⁵⁰ The Decision on Comprehensively Advancing Governance According to the Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee, stressed to “fortify judicial safeguards of human rights. Strengthen institutional protections of parties’ and other litigation participants’ right to know, to make comments, to defend and debate, to make requests, and to appeal in the course of litigation procedures.”⁵¹

 

 

Administrative power and enforcement shall be used to protect civil rights. If law enforcement is too lax, it will not only fail to effectively protect civil rights, but also infringe upon civil rights. Since the 14th CPC National Congress, the Party and the State have increasingly stressed administration by law, strict law enforcement, the establishment of a law enforcement supervision and accountability system, and the founding of s relief and compensation system for victims of law enforcement violations.

 

With regards to administration by law and strict law enforcement, the report to the 14th CPC National Congress stressed to “strictly practice the Constitution and other laws.”⁵² The Decision on Establishing a Market Economy System delivered at the Third Plenary Session of the 14th CPC Central Committee put forward that “gov-ernments at all levels should administer the country and act according to the law. Resolutely correct non-compliance, lax law enforcement, refraining from punishing law-breakers, abuses of power, violating laws seeking sectoral or regional interests and other wrongdoings concerning economic and other activities. Strengthen the construction of law enforcement and improve the personnel quality for law enforce-ment.”⁵³ The report to the 15th CPC National Congress required that “all government organs must perform their official duties according to law and guarantee the rights of citizens in real earnest.”⁵⁴ The report to the 16th CPC National Congress urged “raise the level of law enforcement so that laws are strictly implemented.”⁵⁵ The Decision on Building a Harmonious Society, adopted by the sixth Plenary Session of the 16th CPC Central Committee asked to “accelerate the construction of law-based government, promote the administration according to law in all respects and exercise the power and perform the duties strictly in accordance with the functions and procedures prescribed by law.”⁵⁶ The report to the 17th CPC National Congress stated that “we will strength-en the enforcement of the Constitution and laws”, “we need to carry out government administration in accordance with the law”, and “we need to improve the overall quality of judicial, procuratorial and public security personnel to ensure that law enforcement is strict, impartial and civilized.”⁵⁷ The report to the 18th CPC National Congress stated that “we should exercise government administration in accordance with law and ensure that law enforcement is conducted in a strict, fair, and civilized way according to due procedures.”⁵⁸ The Decision on Comprehensively Advancing Governance According to the Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee, pointed out that “the lifeforce of the law lies in its implementation, the authority of the law also lies in its implementation”, and put forward more specific requirements for administration according to the law and strict law enforcement. The Decision called for comprehensively carrying out administrative functions according to the law. “Perfect legal structures for administrative organization and administrative procedure and advance the creation of statutes for bodies, functions, powers, procedures and responsibilities. Administrative organs must persist in their obligation to carry out their statutory duties and not doing what is not authorized by law, and they must have the courage to be responsible, dare to shoulder burdens, firmly correct a lack of action or chaotic actions, firmly overcome laziness and indolence in government, and firmly punish neglect and dereliction of duties. Administrative bodies must not establish powers outside of the law, and may not decide to impinge on the lawful rights and interests of citizens, legal persons and other organizations without a basis in law and regulation, or to increase their duties. Carry out a governmental power list system, and persist in eliminating the space for rent setting and rent seeking through power”, “complete mechanisms for policymaking according to the law. Determine that public participation, expert argumentation, risk assessment, legality review and collective discussion and decision-making are statutory procedures for major administrative policy decisions, and guarantee that policymaking structures are scientific, procedures are proper, processes are open and responsibilities are clear” and “persist in strict standards for fair and civilized law enforcement. Punish all kinds of unlawful activities according to the law and expand law enforcement forces in focus areas relating to the direct interests of the masses. Perfect law enforcement procedures, and establish recording systems for the entire process of law enforcement. Clarify concrete operational workflows and focus on standardizing administrative licensing, administrative punishment, administrative enforcement, administrative collection, administrative fees, administrative inspection and other such administrative law enforcement acts. Strictly implement the legal examination and verification system for major law enforcement Decision.”⁵⁹ The report to the 19th National Congress stated that “we shall build a rule of law government, promote law-based government administration, and see that the law is enforced in a strict, procedure-based, impartial, and non-abusive way.”⁶⁰

 

With regards to law enforcement supervision and responsibility investigation, the report to the 14th CPC National Congress asked to “strengthen the supervision of law enforcement, and resolutely correct such phenomena as overriding laws by personal views and substituting fines for criminal punishment.”⁶¹ The Decision on Establishing a Market Economy System delivered at the Third Plenary Session of the 14th CPC Central Committee put forward that we should intensify supervision of law enforcement, “establish and perfect the supervision mechanism of law enforcement”, and “establish a system for tracing accountability for illegal law enforcement.”⁶² The report to the 15th CPC National Congress called for instituting “a system of responsibility for law enforcement and a system of assessment and examination.”⁶³ The report to the 16th CPC National Congress called for the accountability system for administrative law enforcement to be perfected and to “Strengthen the restrictions and supervision on the exercise of power, and strengthen the supervision to administrative organs and judicial organs.”⁶⁴ The Decision on Comprehensively Advancing Governance According to the Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee called for “complete constitutional implementation and supervision systems.”⁶⁵

 

In terms of administrative relief and compensation, the Decision on Establishing a Market Economy System delivered at the Third Plenary Session of the 14th CPC Central Committee put forward that “we should establish a system for compensating illegal law enforcement.”⁶⁶ The Decision on Building a Harmonious Society, adopted by the sixth Plenary Session of the 16th CPC Central Committee pointed out that “we should improve the system of administrative review and administrative compensation.”⁶⁷

 

 

The effective implementation of the law depends not only on law enforcement and the judicature, but also on the conscious compliance with the law by all subjects under the law. This requires the establishment and maintenance of the authority of the Constitution and other laws, upholding the equality of all citizens before the law, opposing any privilege beyond the law, developing education to popularize knowledge of the nation’s laws, building a culture of the rule of law, and improving the legal accomplishment of all people, especially public officials.

 

In establishing and upholding the authority of the Constitution and other laws, the report to the 15th CPC National Congress called for the dignity of the Constitution and other laws to be safeguarded.⁶⁸ The Decision on Comprehensively Deepening Reform, adopted by the Third Plenary Session of the 18th CPC Central Committee required “protecting the authority of the Constitution and laws,” and stated “we will establish and improve the system within which the whole society is loyal to, abides by, upholds and applies the Constitution and laws.”⁶⁹ The Decision on Comprehensively Advancing Governance According to the Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee stated “the authority of the law springs from its endorsement in the people’s hearts and from their sincere belief. The people’s rights and interests must rely on legal guarantees, and the authority of the law must rely on the people upholding it”, “any organization or individual must respect the authority of the Constitution and other laws, act within the scope of the Constitution and other laws, exercise their powers and rights, and carry out their duties and responsibilities according to the law. None may have privileges outside of the Constitution and the laws. We must safeguard the unity, dignity and authority of the State legal system, realistically guarantee the effective implementation of the Constitution and other laws, and absolutely not permit any person to let their word replace the law, use their power to suppress the law, or bend the law for friends or relatives under any excuse and in any way. We must make standardizing and restraining public power into a focus point, expand supervision strength, ensure that there must be responsibility where there is power, there must be supervision over the use of power, and that law-breaking must be punished, and firmly correct acts where laws are not followed, law enforcement is not strict, and law-breakers are not punished.”⁷⁰ The report to the 19th CPC National Congress called for public awareness of the principle underlying rule of law that the Constitution and the law are above everything else and that everyone is equal before the law.”⁷¹

 

In upholding the principle that all people are equal before the law and going against privileges transcending the law, the Communique of the Third Plenary Session of the 11th CPC Central Committee stated, “we should ensure that all people are equal before the law and that no one is allowed to have privileges over the law.”⁷² The report to the 15th CPC National Congress indicated that “we must see to it that all people are equal before the law and no individuals or organizations shall have the privilege to overstep it.”⁷³ The report to the 16th CPC National Congress put forward that “the Constitution and other laws embody the unity of the Party’s views and the people’s will. All organizations and individuals must act in strict accordance with the law, and none of them are allowed to have the privilege to overstep the Constitution and other laws”, and that “Party members and cadres, especially leading cadres, should play an exemplary role in abiding by the Constitution and other laws.”⁷⁴ The report to the 17th CPC National Congress required that “Party organizations at all levels and all Party members must act under the Constitution and laws on their own initiative and take the lead in upholding the authority of the Constitution and laws.”⁷⁵ The report to the 18th CPC National Congress pointed out that “as the Constitution and laws are adopted by the Party and the people under its leadership, the Party must act within the scope prescribed by the Constitution and laws. No organization or individual has the privilege of overstepping the Constitution and laws, and no one in a position of power is allowed in any way to take one’s own words as the law, place one’s own authority above the law or abuse the law.”⁷⁶ The Decision on Comprehensively Deepening Reform, adopted by the Third Plenary Session of the 18th CPC Central Committee states that “we should uphold the principle that all people are equal before the law, no organization or individual should have the privilege transcending the Constitution and oth-er laws, and all violations of the Constitutional and other laws must be investigated.”⁷⁷ The Decision of Comprehensively Advancing Governance According to Law, passed on the Fourth Plenary Session of the 18th CPC Central Committee indicates that “we must persist in the Party leading legislation, guaranteeing law enforcement, supporting the judiciary and taking the lead in respecting the law” and “persisting in equality in all people before the law. Equality is a basic characteristic of Socialist law.”⁷⁸ The report to the 19th CPC National Congress stated that “every Party organization and every Party member must take the lead in respecting, learning about, observing, and applying the law. No organization or individual has the power to overstep the Constitution or the law and no one is allowed in any way to override the law with his or her own orders, place his or her authority above the law, violate the law for personal gain, or abuse the law.”⁷⁹

 

In conducting education to popularize knowledge of laws and building the culture of rule of law, the report to the 15th CPC National Congress stated that “we shall educate the people about the law to make them more aware of its importance. In particular, we shall enhance the leading cadres’ awareness of the importance of the legal system and their ability to perform their duties according to law.”⁸⁰ The report to the 16th CPC National Congress required that “we should give more publicity to the legal system so that the people are better educated about the law. In particular, we will enhance public servants’ awareness of law and their ability to perform their official duties according to law.”⁸¹ The Decision of Building a Harmonious Society, adopted by the Sixth Plenary Session of the 16th CPC Central Committee, put forward that “we should educate and publicize legal knowledge in depth to form the atmosphere of all citizens to learn the law, abide by law and use the law.”⁸² The report to the 17th CPC National Congress pointed out that “we need to step up the education campaign to increase public awareness of law, and promote the spirit of the rule of law, creating a social environment in which people study, abide by and apply laws of their own accord.”⁸³ Report to the 18th CPC National Congress stated that “we should carry out intensive publicity and education about the law, foster the socialist spirit of the rule of law, and adopt the socialist concept of law-based governance. We should enhance the whole society’s awareness of the need to study, respect, observe, and apply the law. We should ensure that leading officials are guided by law in both thinking and action in their effort to deepen reform, promote development, solve problems, and maintain stability.⁸⁴ The Decision on Comprehensively Advancing Governance According to the Law, passed by the Fourth Plenary Session of the 18th CPC Central Committee called for “the consciousness on respecting and protecting human rights in all of society” to be strengthened.⁸⁵ The report to the 19th CPC National Congress stated that “we will redouble efforts to raise public awareness of the law, and develop a socialist culture of rule of law.”⁸⁶

 

 

Since the founding of the People’s Republic of China, China has gradually abandoned the concept of “human rights” and mainly used “civic rights” in its laws. With the reform of the economic and social system, the State has been expanding the pro-tection of individual rights which belong to human rights in real terms, but the concept of “human rights” was gradually adopted by the government in the 1990s, which is closely related to the opening-up and international exchanges. It was the need to open up and international exchanges that prompted the Chinese Government to adopt the concept of “human rights” to express its position and work to connect with the main-stream human rights discourse of the international community.

 

After the Second World War, the Charter of the United Nations put “promoting and inspiring respect for human rights and fundamental freedoms for all”⁸⁷ as one of the purposes of the United Nations. The Universal Declaration of Human Rights, enacted and published in 1948, is widely recognized by most countries of the world, and in 1966 the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were enacted, followed by a series of conventions, declarations, resolutions and other international instruments. As of August 20, 2017, the International Covenant on Civil and Political Rights had 169 Contracting Parties and six signatories, the International Covenant on Economic, Social and Cultural Rights had 165 Contracting Parties and five signatories, the Convention on the Rights of the Child had 196 Contracting Parties and one signatory, the Convention on the Elimination of all Forms of Discrimination Against Women had 189 States parties and two signatories, the Convention on the Elimination of all Forms of Racial Discrimination had 178 Contracting Parties and five signatories, the Convention on the Rights of Persons with Disabilities had 174 Contracting Parties and 13 signatories, and the Convention Against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment has 162 Contracting Parties and eight signatories.⁸⁸ In 2006, the United Nations established the Human Rights Council as the third-largest council in parallel with the Security Council and the Economic and Social Council, showing that security, development and human rights are the three most important matters and objectives of the United Nations. It means that “human rights” has become the mainstream discourse of the international community. So if China wants to integrate into the international community, it must use the concept of human rights positively.

 

In addition, during the Cold War, Western countries did not use the concept of human rights to express their position and work, but used the so-called human rights issues as a tool to launch attacks on the socialist countries and to start “color revolutions.” In the late 1980s and early 1990s, the Soviet Union and Eastern Europe changed drastically, and hostile Western forces intensified their use of “human rights issues” to launch an anti-China offensive. Since the 46th session of the United Nations Commission on Human Rights in 1990, the United States and other Western countries have raised proposals on China’s “human rights issues” 11 times at meetings of the Commission on Human Rights, accusing China of violating human rights.⁸⁹

 

With the deepening of reform and opening-up and the new changes in the international situation, China has gradually raised the banner of human rights. “What are human rights?” Deng Xiaoping said on June 6, 1985, responding to attacks by international hostile forces against China, “First of all, who should have the human rights? Do human rights belong to the minority, to the majority or to all the people of the country? The so-called human rights in the Western world, and the human rights we speak of, are essentially two different views.”⁹⁰ In 1989, Jiang Zemin made it clear that we should solve the problem in thoughts about “how to look at issues of ’democracy, freedom and human rights’ from the perspective of Marxism.”⁹¹ In 1990, the CPC Central Committee made clear that “We must confidently publicize China’s views on human rights, democracy, freedom, and the real situation of safeguarding human rights and implementing democratic institutions so as to put the banner of human rights, democracy and freedom in our hands.” On November 1, 1991, the Information Office of the State Council published a White Paper on Human Rights in China, in which “Human rights” is called as a “great noun.” Since then, 11 white papers on human rights and about 50 white papers related to human rights have been published. The 15 th CPC National Congress in 1997 wrote “respect and guarantee human rights” into its report. On December 10, 1998, Jiang Zemin issued a congratulatory letter to the China Society for Human Rights Studies (CSHRS) on the 50th an-niversary of the Universal Declaration of Human Rights, stating: “Since the founding of the People’s Republic of China, especially since the reform and opening-up, the Chinese government and people have combined the universality principle of human rights with China’s specific conditions. Great efforts have been made in the promotion and protection of human rights and remarkable results have been achieved.” “We will continue to strengthen the construction of democracy and legal system, rule tuhe country by law, and build a socialist country ruled by law, so as to further promote the cause of human rights in China and fully guarantee people’s right to human rights and democratic freedoms prescribed by law.”⁹² In October 2003, the Third Plenary Session of the 16th CPC Central Committee passed the Advice of the CPC Central Committee on Amending Part of the Constitution for the NPC Standing Committee, proposing writing into the Constitution that “the State respects and protects human rights.” On March 14, 2004, the 2nd Session of the 10th NPC adopted a constitutional amendment, which clearly stipulated in the Constitution that “the State respects and protects human rights.” The outline of the 11th Five-Year Plan (2006-2010), which was approved by the NPC at its fourth meeting in March 2006, clearly proposed that human rights should be respected and safeguarded to promote the all-round development of the cause of human rights. In October 2007, the 17th CPC National Congress wrote into the Chinese Communist Party Constitution “respect and safeguard human rights.” December 10, 2008 was the 60th anniversary of the publishing of the Universal Declaration of Human Rights, when General Secretary Hu Jintao wrote to CSHRS and he mentioned respecting and protecting human rights as the “important principles of governance” of the Party and the government. In April 2009, the Chinese government enacted the National Human Rights Action Plan (2009-2010). Then it enacted the National Human Rights Action Plan (2011-2015) and the National Human Rights Action Plan (2016-2020). The National Human Rights Action Plan clearly states that “the full realization of human rights is a long-term aspiration of humankind and a long-term goal for the Chinese people and government,”⁹³ and defines the basic principles for its formulation and implementation as follows: “Pushing forward the work in accordance with the law and bringing China’s human rights work under the rule of law; pushing forward the work in a coordinated way, and promoting the comprehensive and coordinated development of the people’s various rights and interests; pushing forward the work in a pragmatic way, and integrating universal principles on human rights with China’s realities; pushing forward the work in a balanced way and making sure that all people enjoy equal human rights; pushing forward the work with joint efforts, with the government, enterprises, public institutions and social organizations working together to promote human rights.”⁹⁴

 

At the international level, China has successively joined in 26 international covenants on human rights, submitting its performance reports on schedule and these have been reviewed. After the founding of the United Nations Human Rights Council in 2006, China was successfully elected as one of its members four consecutive times. China has regular dialogues on human rights with the United States, the European Union, the United Kingdom, Germany, Australia, Switzerland, the Netherlands and Norway, and holds regular consultations on human rights with Russia, Pakistan and the African Union. China has regularly held the Beijing Forum on Human Rights, the South-South Human Rights Forum and other international forums on human rights since 2008, inviting human rights experts, officials and social workers from all over the world to discuss the development of the world’s human rights cause. On September 16, 2015, Xi Jinping noted in the congratulatory letter to the 2015 Beijing Forum on Human Rights, “since modern times, the Chinese people has been suffering, and thus they know the great significance of the value of human beings, basic human rights, and personal dignity to social development and progress, and cherish the hard-won peaceful environment for development. They will unswervingly take the road of peaceful development and promote the human rights cause in China and the world.” “China advocates the enhancement of exchanges and cooperation among civilizations to promote better development of human rights in all countries.”⁹⁵ On December 4, 2016, Xi Jinping said in a congratulatory letter to International Symposium commemorating the 30th anniversary of the Declaration on the Right to Development: “China insists on the integration of the universality principle of human rights with the reality of the country, and insists that the right to survival and the right to development are the primary fundamental human rights... China adheres to the idea of peoplecentered development, and puts promoting people’s welfare, guaranteeing the rights of the people as the masters of the country and promoting people’s all-round development as the starting point and the foothold of development, which effectively protect people’s development right and interests and develop a path of human rights development with Chinese characteristics.”⁹⁶ On December 7, 2017, Xi Jinping said in a congratulatory letter to the first South-South Human Rights Forum: “The CPC and the Chinese government adhere to people-centered development, always put people’s interests in the supremacy and people’s aspirations for a better life as the goal, and continuously enhance the respect and protection of the basic rights of the Chinese people. The 19th CPC National Congress, which was held recently, described the magnificent blueprint of Chinese development, which shall vigorously promote the development of China’s human rights cause and make new and greater contributions to the cause of human progress.” “The Chinese people are willing to work together with the peoples of the world, including of developing countries, to promote development by cooperation, promote human rights by development and jointly build a community with shared future for humanity.”⁹⁷

 

(Translated by NI Weisi)

 

* CHANG Jian ( 常健 ), Director of the Research Center for Human Rights at Nankai University (National Human Rights Education and Training Base), Professor and doctoral supervisor of Zhou Enlai School of Government, Nankai University.

 

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2. Communique of the Third Plenary Session of the 11th Central Committee of the Communist Party of China, passed on December 23, 1978.

 

3. Jiang Zemin, Accelerate Reform and Opening-up and Modernization to Seize the Greater Victory in Cause of Socialism with Chinese Characteristics—Report to the 14th National Congress of the Communist Party of China, October 12, 1992.

 

4. Decision of the CCCPC on Several Major Issues Concerning Establishing a Socialist Market Economy System, passed by the Third Plenary Session of 14th Central Committee of the Communist Party of China on November 14, 1993.

 

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6. Ibid.

 

7. Decision on Several Major Issues Concerning Building a Socialist Harmonious Society, passed by the sixth Plenary Session of the 16th Central Committee of the Communist Party of China on October 11, 2006.

 

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10. Communique.

 

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