Editor’s Note: This article, originally an academic lecture in Chinese, is a bit long, in a series of four parts plus an Introduction and a Conclusion, but it has originality and topical significance. It discusses the rule of law and democracy, the two major aspects of modern political life, against the different historical backgrounds of the developed and developing countries, and then proposes a model mixing the two aspects in a proportion the author thinks best for China, laying emphasis on the rule of law.

For the convenience of the readers, this editor has rearranged the parts, moving forward the more “practical” Part Four to the beginning, right after the Introduction, and leaving the more theoretical parts behind in installments for those readers also interested in academic reasoning to chew over with more patience. 

This editor has also re-worded the title of the article and the headers of the parts, added subheadings within each part, and also made some revisions in the language of the original translation. (For original posting of the article in both Chinese and English see here.).

THE TEXT

Introduction: Misunderstanding of China’s Problem

Scholars concern themselves with ways and means to restrain abuse of power for private ends, a phenomenon very rampant in the officialdom. The crux of the problem is how to compel government officials to become law-abiding.

It is a one-sided view to presume that China has a profound tradition of government corruption. The traditional Chinese civil servant system has been a lighthouse for East Asian political civilization, in which honesty has been the main stream. Honest officials were lauded. Impartiality and honesty was worshiped. Uncorrupted officials were esteemed. Honesty was esteemed as the “kingly way” and was the orthodox of Chinese political civilization. It was only when Chinese dynasties were heading for doom that corruption became rampant. Hong Kong and Singapore are honest and uncorrupted. The government under the Chinese Communist Party was also one of the most honest governments in the world. We have no reason to consider all governments run by Chinese as corrupt. The Chinese people cherish great hatred for corruption and judge the quality of their government by the yardstick of impartiality and justice. People support the government because of its honesty, not because of its support for their group interests. They would oppose their government if it became corrupt, not because it did not represent their group interests. Chinese urban residents are very enthusiastic about reporting corruption cases so far as the practice proves effective. Provided with a good system, China will leave no room for any corruption cover-up.

Nothing is more threatening to the people’s freedom than governmental abuse of power and governmental disobedience to law. Due to the influence of doctrinal bigotry, quite a number of people in China argue that only when there is democracy can the government be compelled to be law-abiding. Only “good” laws can lead to the rule of law. This was a misunderstanding, and a harmful misunderstanding at that. Good rule over the people never led to the rule of law. Nor did it improve the rule of law either. Parliamentary democracy can change the contents of law, but the change of law contents did not mean the rule of law. The rule of law in Western political civilization was not an outcome of democracy, but rather originated in the long-standing legalist tradition (or the emphasis on the independent status of law and of the legal profession). The rule of law in Japan was not a product of democracy either. It was founded in the Reformation Movement instead. (1) Almost all non-Western parliamentary systems fell short of the rule of law. Just look at those countries that had just got involved in the “third democratic wave” and you will see if they have increased or sharply decreased the elements of rule of law. And then have a look at Hong Kong just under our very noses, where there was basically no democracy. But how many countries’ government officials were more fearful of law than those of Hong Kong?

Democratic elections at an interval of several years cannot guarantee the President and parliamentary members against misconduct. To warn against jumping from the mire of blind belief in dictatorship to the snare of that in election, this author is trying here to explain what sort of a system would be successful in compelling government observance of law, or what sort of “rule of law” should be enforced for this purpose.
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Note:
(1) Until the 1990s the main stream Western academic world had taken the post-war Japan as a bureaucracy-led form of government, negating the Diet as the core of the Japanese government. Reference can be made to Chalmers Johnson, MITI and the Japanese Miracle, Stanford University Press, 1982. Karl van Wolferne, he Enigama of Japanese Power, Vintage Books, New York, 1989.

Part I: Rule of Law or Democracy: the Issue for China Today
Part II: “Good Laws” vs. “Bad Laws”
Part III: Two kinds of Legislation Principle and Mixed System

Part IV: A Consultative Legal System for China

After much theoretical discussion, we have to come to the solution of practical issues. But when we attempt to seek pragmatic solutions, we will have to confront two basic questions. The first is what we should do, that is, what kind of mixed system should be established that is capable of solving China’s problems? The second is how to proceed, how can we switch from the “rule by men” and “rule by party” into the “rule of law’?

(1) I once formulated the concept of a totally new type of political system founded on five pillars, with the political systems in Hong Kong and Singapore as a model. The five pillars are: (1) a system of neutral civil servants; (2) an autonomous judicial system; (3) an independent anti-corruption organization; (4) a broad social consultation system centered around the People’s Congress; (5) four freedoms of speech, press, assembly and association. Though the four freedoms are not part of the government system, they are the fundamental principles that all the government organizations should safeguard, therefore they can constitute part of the political system.

The consultative legal system obviously emphasizes the execution of law and the check-and-balance. The system centers on the system of neutral civil servants who are responsible for the execution of law. The independent anti-corruption organization is used for direct combat against corruption, with emphasis on the decisive role of the judiciary independence. The other four major pillars are also called upon to provide check-and-balance on the civil servants. The consultative legal system incorporates elements of democracy with its strong consultative nature; hence it is not purely a system of rule of law. Democracy plays a subsidiary role within this system, designed to respond to the changing situations of society, enabling the enforcer of law to hear the voices from people of all walks of life and preventing the rule of law from deteriorating into “rule by the judge” or the “rule by the enforcer of law”. The democratic elements include: (1) the four fundamental freedoms as mentioned above; (2) the possession by popularly-elected people’s representatives of the authority to ratify legislation, the right to administrative investigation and the right to present proposals; (3) the possession by the consultative committees at various social levels of the right to administrative investigation and the right to present proposals.

This consultative system differs importantly from the political systems in most developing countries. The rule of law prescribed in this system prevents it from being a form of dictatorship; the fact that its main body consists of the system of rule of law prevents it from being a purely democratic system. Such a system also remains distinct from the Western model of “free democratic system” which is dominated by democracy and supported by the rule of law. By contrast, the consultative judicial system is dominated by the legal system and supported by democracy. The consultative judicial system is unique because the problems inherent in China are totally special and because the social conditions created by China’s particular historical circumstances are special. The fundamental objective of this consultative legal system is to solve the problem of corruption, to force the government to abide by the law, to establish administrative transparency of government practices, and to strengthen the general public’s confidence in a just order.

This system is an innovation and an improvement on the existing political civilization. On one hand, China’s ancient tradition of the system of civil servants is re-established while on the other, the moral doctrine and the centralization of monarch inherent in this ancient tradition are undermined. On one hand, the rule of law in Western civilization is incorporated into the system, while one the other, the representative democracy created by the Western social revolutions is weakened, and the rule by congress prevalent nowadays is rejected. In today’s new world, which resembles in a way the ancient “Spring and Autumn and the Warring States” China, the consultative rule of law strongly demands change and innovation in the legal system and to incorporate “New Legalist” ideas for strengthening the nation. All great civilizations are built around a distinctive and outstanding political civilization and any mechanical imitation of foreign models would inevitably result in failure. The hope for the rejuvenation of the Chinese civilization lies in introducing changes and innovations into the existing system, and China’s reality with its existing socio-political conditions require institutional transformation and innovation.

(2) How can the consultative legal system be established in China? All systems are established for the purpose of governing people, but at the same time all systems are created by man and the creation of a new system is a heroic cause. If we suppose that China’s top leadership is willing and determined to undertake institutional reform directed toward the rule of law and centered on the system of civil servants, it is not difficult to imagine the subsequent measures. However, the generation of such an intention and determination is by no means inevitable. The domestic pressure significantly increases as a result of the accumulation of social problems and external pressure grows as a result of the rapidly changing international pattern. Under such circumstances, different leaders would produce totally different judgments and decisions. Therefore, strategic vision and boldness become two fundamental factors affecting the intention and the decisions of the top leadership. There are three possible choices for undertaking political reform: (1) to take non-action or to introduce only minor changes which is the easiest way and also the most common practice for mediocre leaders; (2) to introduce reforms directed toward the rule of law and centered around the system of civil servants, which is the most difficult and challenging but the most active; (3) to introduce a reform which is directed toward democracy and centered around “popular sovereignty” which cannot very well be the result of “making a choice” but rather the result due to the failure of the first choice. The system born out of the third choice cannot be labeled as “new”, since many third-world countries have already adopted it. Chinese leaders would not be so foolish as to imitate Gobachove, unless a “president” would emerge from within the party, like what has happened in Taiwan, who regards the destruction of his party as his primary responsibility.

Suggested Steps towards Rule of Law in China
If Chinese leaders are determined to carry out the “rule of law”, to establish a system to enforce the “rule of law”, to allow the authority of law prevail over the authority of the government, the following six steps must be taken sooner or later.

(1) The focus of the work of the ruling party should be shifted from “economic construction” to the construction of the “rule of law”. Will this shift produce harmful effect on economic development? Not at all, such a shift will only lead to a general essential improvement of the environment for domestic investment. In the presence of law, all businessmen, industrialists, and all common people are equal, allowing no privilege to any party or government officials. Any government official who acts as the behind-the-scenes backer for illegal employers or practices nepotism would be severely punished once his malpractice is reported. This will enable enterprises, businessmen and the general public to realize a sense of order, a sense of fairness and justice when everybody is regarded as equal before the law and government officials will also come to acknowledge the sanctity of law.

2) It is important to take concrete measures to carry out the principle of “separation between the Party and the administration” as formulated by the 3rd Plenary Session of the 11th National People’s Congress and to gradually abolish the existing parallel administrative structures. The party treasury and the national treasury would no longer be linked and, likewise, the positions and the salaries of the professional party workers would no longer be connected with their government positions and salaries. The party implements its major policies and guidelines through its members within the government, especially through those government administrators. This requires, first of all, the streamlining of the party organizations at provincial, municipal and county levels and transferring of large number of party personnel to administrative departments, especially to those law-enforcing departments. Secondly, it is necessary for various party committees to shift their focus of their work to two areas: 1. educating the party members to abide by disciplines and laws and publicizing to the general public the policies of the ruling party; 2. endeavoring to win the elections of people’s representative at various levels and to obtain the power to appoint government administrators.

(3) Actions should be taken to reform the government according to the principle of the system of civil servants. In this way, the promotion, transfer, award, recruitment, and retirement of civil servants would be conducted strictly according to rigorous regulations of the system of civil servants by the personnel department independent of the chief administrator. The chief administrator is only responsible for executive affairs and must not interfere in personnel affairs. Government administrators formulate main executive objectives and directions and must not intervene into the daily affairs or even the personnel affairs of the system of the civil servants. The Chinese communities in Hong Kong and Singapore have accumulated abundant experiences in governing the civil servants and many specific provisions have created the most honest (uncorrupted) system of civil servants in the world. Many people have the mistaken notion that the incorruptibility of the civil servants in Singapore and Hong Kong is the result of high salary. As a matter of fact, high salary cannot guarantee the incorruptibility of the government because the salary, however high it is, can never be comparable to bribes. The number of the civil servants determines that their average salary can only reach the middle or above-middle level in the entire society. It is the possibility of severe punishment that leads to the honesty of the government, and the high salary of the civil servants brings about superior service.

4) It is necessary to create the separation between the judiciary system and the anti-corruption system. If the head of the county court is nominated by the county government, the nomination is passed by the county’s party committee and ratified by the people’s congress of the county, it is certain that the county court will conspire with the local government officials and the authority of the local government will incur no checks and balances. The separation between the party and the government is the key measure in carrying out the rule of law and the independence of the judiciary system is the key to the success of the rule of law. In order to establish an uncorrupted government, we must also ensure the independence of the anti-corruption system. There are many anti-corruption systems in the world and the most effective anti-corruption organizations are in Hong Kong and Singapore. There is no other reason but that in Hong Kong and Singapore nobody except the top chief administrator can stand above the special right of investigation of the anti-corruption organizations and this top chief administrator is not allowed to interfere in the daily activities of the anti-corruption organizations. The authority of the anti-corruption organizations in Hong Kong and Singapore also lies in the special right to enforce law. Only the anti-corruption organizations are allowed not to act on the usual principle of non-criminal inference. Instead, they act upon the principle of criminal inference. Any government official who fails to produce an account of the legitimate source of his or her property is automatically deemed guilty and the responsibility to produce convincing evidence rests with the accused instead of with the prosecutor. Since government officials are entrusted with public power, which enables them to influence the life of the ordinary people, they do not enjoy privacy and the right to non-criminal inference.

(5) Independent law-enforcing organizations must guarantee the right of the people’s representative congress to ratify legislation, the right to administrative investigation and the right to present proposals. All the civil servants and government administrators should be subjected to regular inquiries and hearings by the people’s representatives and the demands raised by the people’s representatives to consult relevant files must be satisfied. The right to administrative investigation is especially important and its significance lies in the creation of administrative transparency and in the supervision by the people and public opinion. All politicians involved in illegal activities will be severely punished. The congress in Taiwan looks rather active, but none of the congressmen has the right to administrative investigation, including the right to consult administrative files. At the same time, we should try to establish a large number of “consultative committees” at various levels and in various departments. Those committees shall consist of retired civil servants, experts and people representing different interests who do not receive any payment for their voluntary work but enjoy the right to administrative investigation and to making suggestions. As long as there is administrative transparency, the general public would have confidence in a law-abiding government.

(6) Finally, we come to the four freedoms of speech, publication, assembly and association. As long as we set up a framework of a government prepared for the rule of law, the four freedoms will not be used by interest groups as instruments to fight for political power and they will not constitute threats to social order. Instead, those four major freedoms will become tools used by the general public to supervise and to evaluate the performance of the government and become the primary channel for expressing all kinds of public opinion. It should be pointed out that, without judicial independence, there will be none of the four freedoms.

Conclusion (a summary for the whole series)