CHINA NEEDS A CONSULTATIVE LEGAL SYSTEM
Introduction: Misunderstanding of China’s Problem
Part I: Rule of Law or Democracy: the Issue for China Today
In a book entitled “The Battle of Democracy,” Graham wrote, “Until the 18th century everybody had been aware what democracy was.” (2) Democracy was a system under which all adult citizens regularly elected their national top leaders. (3) The rule of law referred to a system whereby the authority of law was higher than that of the government, compelling the leaders to obey the law. Since the people were not the “law,” so the rule of the people could not possibly be the rule of law. In modern times a parliamentary system emerged, replacing the direct democracy for the majority of the people in ancient Greece with indirect democracy through the agency of a small number of elected representatives, i.e., the “Rule of Parliament.” But the parliamentary system was not the same thing as the rule of law either. The rule of law is different from democracy in four basic aspects.
Rule of Law vs. Democracy
(1) It is different in the concept of power. Democracy places the hope of justice on the extent of people’s participation in the government. “People’s sovereignty,” “parliamentary sovereignty,” “The People’s Congress is the supreme power organ” are all manifestations of such an ideal. The main method to ensure people’s participation in government is to hold general elections of the top leaders and to pass resolutions by the majority on important government policy decisions. Democracy holds that the more frequent the general elections and resolutions by the majority, the more people who take part in the general elections and resolutions, the more guaranteed the people’s welfare would be.
On the other hand, the proponents of the rule of law pin their hope of justice on the extent of government power being placed under the restraint of law, on the freedoms of the individuals. “Law is supreme,” “sovereignty of the constitution,” “Everybody is equal before the law” are all expressions embodying this ideal. Unlike the democratic method, the main method of establishing the authority of law is to institute a system of check and balance of powers. That is, it is stipulated that the different governmental functional organs shall be independent of each other, their powers are clearly defined and no mutual transgression is permitted. The proponents consider that the more clearly the law defines the functions of the government, the more severe the punishments are for government offenses of law, the greater freedoms of the individuals will be guaranteed. The check and balance of powers reduces the top leaders’ favoritism towards interest groups or their monopolistic power. It obliges them to respect the law-stipulated power limits. The key to the system lies in judicial independence. The judicial branch is not held accountable to the voters or the executive. Since the judicial organ is independent, it will have the means to penalize the executive for law offense and the executive is brought under control. In short, while democracy stresses on realizing group welfare through people exercising their rights to participate in political power, the rule of law emphasizes the guarantee of individual rights (or freedoms) through restricting the power of the government.
(2) Since they are different concepts, the rule of law and democracy have different powers and functions. Parliamentary democracy grants the people’s deputies the power to rule and the power to set up a government approved by the majority of the people. With such an objective in view, parliamentary democracy stresses on legislation. Only the rules endorsed by the majority of the people’s deputies are legitimate. Otherwise there is no reason for compliance.
Instead of setting up a government, the principal function of the rule of law is to administer it. Wherever the laws may come from, no matter whether the government is elected or not, so long as the laws are valid and conform to the “basic law,” the government must enforce them without fail. The executive is given no discretion rights. Thus the rule of law emphasizes law enforcement and demands that government officials act according to law. The government can only do what the law stipulates explicitly while the people are permitted to do anything unless explicitly prohibited by law. Especially in modern times, the judicial branch has been vested with the power to punish the executive branch for violations of the basic law especially the laws protecting popular rights to expression, publishing, assembly and association. The rule of law also demands that, no matter what the people’s will is, no matter where the basic law comes from, legislation by the people’s deputies must conform to the basic law. The basic law is not subject to formulation, change or interpretation according to the will of people’s deputies. Otherwise the authority of people’s deputies will overshadow the authority of law. If this is the case, then the government will be unrestricted.
In short, the function of democracy is to defend the government’s power to govern, and legislation is of paramount importance. On the other hand, the function of the rule of law is to restrict the legislation and administrative power of the executive branch. Law enforcement is of paramount importance.
(3) Since they have different functions, democracy and the rule of law have different power organs. Elected legislatures are the bases of democratic power. They are mainly the Parliament and the chief executive either elected or decided upon by the number of seats in the Parliament. They also include the political office holders that are recommended by the chief executive or are in or out of power together with the chief executive. Non-elected law enforcement organs are the power bases of the rule of law. They are mainly the career civil service system and the neutral law court system that are free from the interference of the political officers. The civil service system is not elected. It does not come under the influence of political officers. Its responsibility is mainly to perform routine administrative power according to the criterion of law. Still less is the law court system elected. The responsibility of a career judge is mainly to judge neutrally whether the executive has offended law in his administration or not. For example, if an executive wants to punish a criminal, that criminal still has the right to resist the punishment through a lawyer and the court, and prevent the executive from making any discretion to woo his constituency. No civil system or court in any country is completely independent of the general political situation. But it is essentially different whether to have or not to have an independent power base.
(4) Since they have different organs, democracy and the rule of law have different power regulations too. While democracy regulations are elections plus relative majority decision, those of the rule of law are examinations plus independent meritocracy. While the former relies on the number of votes in close combination with factional interest, the latter relies on merits and meritocracy, taking comprehension and loyalty as the criterion. Although no career civil servants and judges live in vacuum and, so, they can never be “absolutely” neutral unless they live without human food and lodgings, still they are much more neutral than the open representatives of interest groups. They are not responsible to the voters or to the executives. They are only liable to law and are therefore relatively impartial.
In short parliamentary democracy believes that the people will eventually be able to elect good leaders, assuming that a reshuffle once every several years will guarantee welfare for the people. The rule of law does not believe in anybody, assuming that only independent punishment mechanism can stop the executives from misdeeds. Hence, it emphasizes the check and balance of government power--- judicial independence, emphasizing the stability of the basic law and the legislation according to law.
Due to lack of understanding about the check and balance theory, some people often mistake elections as the check and balance. If we believe power can only be controlled by power, then government power must be controlled by government power. Democracy can generate government power, but it cannot restrain government power.
Rule of law and democracy are different from each other in concept, functioning, organs for implementation and regulations, and even at odds with each other. So the problems they are fit to resolve are different too. Democracy can force the government to open up and stop a certain social group from monopolizing political power and make it possible for interest groups to compete for government power freely, thus guaranteeing that the interests of the main stream groups be represented in legislation. The rule of law checks government power with government power, and compels the government to administer according to regulations, thus guaranteeing a social order with personal freedoms.
China’s Problem Today
What is the main problem in our country, then? It is government officers’ contempt for law and unscrupulous misconduct and their abuse of government power for private ends. The cause for such a problem is not that the Chinese laws are bad. The gap between our country and the developed countries does not lie in the legal stipulations, but in the actual efficacy of the laws. Although there are many deficiencies in Chinese laws, it is not difficult to formulate good ones. Furthermore, many current laws are good enough. The problem is that it is difficult to make officials abide by them. Since the emergence of market economic structure, the Chinese political system can no longer contain the spread of corruption. Even the current system itself is the very origin of corruption. This system had once won world-shocking achievements, but now it shows an evident degenerating tendency. It is in bad need of vigorous reforms. Only when government behavior is restricted by the institutions, becomes transparent and subject to rules and regulations can there be any stable “good rule.” That is why the political reform advocated in this article is a reform of the political system, and not a reform of the legal contents. A transparent, law-abiding government commands public trust, arouses confidence among the people in justice and unites the people closely around the government. As far as China is concerned, this is the most effective means for fending off troubles at home and from abroad.
Why are Chinese government officials disobedient to the laws under enforcement? This is because neither of the civil service nor the judicial system is independent. The No. 1 man in all localities and sectors rules with supreme power. Without power separation there will be no independent organs ruling the officials. Without laws ruling the officials, the officials are free to rule the people as they please. They are free to make trouble for the people, for the enterprise, for the university. When the common people and university students make disturbances, some would say this is the “tradition of mobbishness.” But in the world there are only “mobbish officials,” and never “mobbish common people.” Han Fei Zi (c 280 BC ~ 233 BC) said, “I have only heard of good common people independent of chaotic officialdom. I have never heard of any self-ruled officialdom independent of a mob. That was why a wise sovereign always rules his ministers instead of his common people.”(4)
After the emergence of market economy, there emerged two big issues in the current form of government, which led to “chaotic officialdom”:
(1) The decentralized power was turned into feudal power. The check and balance mechanism that had existed before the reform disappeared. While formerly officials might get punished for using government stationary to write personal letters, the No. 1 man of today has the monopolistic power over all the staff, wealth and material resources of the whole area in his charge. He makes the firmest grasp of the power to promote or demote, to reward or to punish the officials, even the judges, under him. The power is so centralized that he takes public property as if his own private property. Fawning is rife and nepotism is rampant in the officialdom, with those who keep idle and loathe, talk big and exaggerate and lick boots being all promoted one after another.
(2) From market economy has been derived “commercialization of official power,” corrupting the original government austerity. Officials are enthusiastic about “commercial activities” and merchants are of course vying to “work on officials.” When officialdom is blended with the market, the unregulated market will be infested with cheating, so will be the officialdom that lacks check and balance. Crude cheating consists in talking about serving the people in your face while bickering over the chips in selling government power behind your back. More sophisticated cheating would consist in juggling with “empty concepts,” making false reports of one’s political performance, trading insincere, big and empty words for higher positions.
Without an independent institution to rule the officials, the officialdom will be rife with misdeeds of exploiting the people and robbing them of their land. The bureaucracy will be rife with selling of official ranks and posts and even open bribery and graft. Gone is the “kingly way” that once prevailed, when officials were strictly self-disciplined, treating the world honestly and sincerely, preferring justice to proceeds, and preferring death to slavish survival. As the kingly way declined, a wicked way sneaked in and ran wild as a matter of course.
Free Election without Rule of Law Cannot Stop Corruption
Some people tried to “restrain” the unlawful officials by means of “democracy,” resorting to such recourses as “democratic appraisal.” The result was that corrupt officials were commended while honest ones were subject to suspicion. The best thing would be that honest officials got promoted after “appraisal.” But without an independent penalty mechanism, even honest officials would become corrupted after assuming power. When an official is about to leave his post, his riches have already piled up. A reshuffle every four years would bring nothing but an upcoming new official hungry for corruption. This has been the case in the mainland as well as in “democratic Taiwan,” in democratic India and in the democratic Philippines. Actually there has been no exception in a society without the rule of law, Chinese and foreign, past and present. Under market economy, how could it be possible to keep officials uncorrupted merely by means of self-discipline without check and balance of power? It would be a great blunder to presume that India, the Philippines and Taiwan were not free enough in speech and elections. The election contests there were much more intense than those in the United States, the political stances articulated far more pluralistic, and freedom of speech much more extensive. But there is no necessary relatedness between democratic elections of officials and a law-abiding bureaucracy.
Judicial Independence Can Solve the Main Problem in China
In China with a “market economy,” the key to a “good rule” lies in making the authority of law more authoritative than that of the officials and in strictly enforcing it. Provided government administration is placed under constant restrictions by law, the people will be free from unscrupulous tyranny. The people are free only when they obey the law and not the individual. Thomas Paine wrote, “On a free land, the government depends on law instead of any big shot.” Henri Rousseau said, “Nothing is more convincing to me than the fact that freedom has the same fate as the law. It flourishes as law flourishes and vanishes as law vanishes too. ” John Locke even pointed out, “Where the law fails is the starting point of tyranny.” (5)
When will a government revere the law with awe and readily comply with it? It will do so when it is subjected to severe punishment when going against them. But who is to ascertain that the government has violated laws and to punish it accordingly? If there is an independent judicial branch and a neutral law enforcement system in the government, the law court may relatively independently judge whether the government is lawful or constitutional or not in its legislation and administration. The judicial branch is on this account entitled to “penalize” law-offending bureaucrats “according to law.”
Judicial independence is a means for restraining government power with government power. Such a brilliant idea can be traced back to ancient Greece 2500 years ago and ancient Rome 2000 years ago. But Britain was the first to have it institutionalized. The United States made the system more refined. It first vested the judicial review power in the Supreme Court, empowering the Supreme Court to veto a legislature or executive resolution according to the Constitution. Judicial independence embraces three basic principles: (a) The principle of independence, i.e., the judicial branch is free from executive interference; (b) The principle of neutrality. Judges are life professionals free from interest group influences; (c) The principle of supremacy of the basic law. The basic law is not subject to any change by elected or non-elected executives at will.
When independent and career law experts are empowered to judge the disputes between the executive branch of the government and the people, and between the government branches, the authority of law will prevail over the power of the executives. And the executives will be compelled to administer according to law. It would be meaningless to discuss whether the laws are good or bad without making the law more important than the executive’s will, without implementing the principle of everybody being equal before the law, and without the sanctity of law and judicial independence. Good laws do not necessarily lead to “good rule” or the rule of law. Just look at what is happening all around, and you will find the rule of man and bad rule everywhere in spite of the existence of good laws.
In China, it is not the making of laws, but rigorous enforcement of laws, or to make the laws really “effective”, that is more important. If the executives do not hold judicial power in awe, but prevail over the law, even the best law will fail to stop a “bad rule.” Separation of power and restriction of government power with government power -- that is the only way to compel government officials to respect laws with awe day in and day out. In a word, it is the rule of law, not democracy, that can solve the main problem in China.
But without “good” laws, would the rule of law not turn out to be the rule of “bad laws”? How could there be “good” laws without a democratic system? (See Part III)
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
Conclusion (a summary for the whole series)
Note:
(2) Keith Graham, The Battle of Democracy, Wheatsheaf Books, 1986, p. 1
(3) The definition of democracy in this article is similar to that of Peter Xiong, who criticizes the definition of democracy as a goal and expounds the necessity of defining it as a means. He says, “Democracy is an arrangement of political system, under which some people win the decision-making power through competing for people’s votes.” Peter Xiong, Capitalism, Socialism and Democracy, Commercial Press, 1979, p. 337
(4) Han Fei Zi : Theory on External Storage
(5) Quoted from G. Sartori: Theory of Democracy Revisited, Chatham; NJ. Chatham House Publishers, 1987 (11. 3) Please refer to Chinese internal edition of New Theories on Democracy, translated by Feng Keli and Yan Kewen, Oriental Press, 1998, p. 345 |
