 |
The Communist Party of China made the decision to “comprehensively deepen reforms” at the third session of its 18th Central Committee in November 2013, and it decided to “comprehensively promote rule of law” at the committee's fourth session in October 2014.The two decisions came in natural logical sequence. Just as Xi Jinping, the Party's general secretary, has said, the decision on rule of law was part of the overall strategy for building socialism with Chinese characteristics. It was not pure discussions about the rule-of-law concept per se but rather a response to the request for better rule of law as posed by all fields in their reform and development as well as the requirement for governance by law in the process of modernizing the country's governing system and governing capacity. The 2013 meeting set the general goal of “developing and perfecting the socialist system with Chinese characteristics and promoting modernization of the country's governing system and governing capacity.” The 2014 meeting set the goal at “establishing a socialist legal system with Chinese characteristics and making China a socialist country ruled by law.” The latter is a further development of the former. Putting into practice governance by law is a key step in the process of modernizing the country's governing system and capacity.
The phrase “modernization of the country's governing system and governing capacity” can be written as “state governance modernization” for short. State governance modernization is the process of transition from the traditional governance system to a modern one. This requires five essential elements. First, institutionalization. This means that the exercise of public power must be institutionalized with routines established. Second, democratization, which means that state governance and institutional arrangement must guarantee that the people rule the roost. Third, rule of law, which means that Constitution and laws are the supreme authority in state governance. Fourth, efficiency. In other words, the state governance system should effectively maintain social stability and social order. Fifth, coordination. Modern state governance system is an organic system, in which all state institutions and the government organizations coordinate with one another for smooth operation. Of these five elements, democracy and rule of law are most important. Without democracy and rule of law, state governance modernization would be out of the question.
The two decisions state that “law is the vital tool for the governing of the country and a good law is the prerequisite for good governance.” This statement has hit the nail on the head. Modernization of state governance has to be based on a modern legal system, which has four essential qualities. First, the country's laws embody the will of its nationals. Their basic function is to guarantee the people's status as the nation's master. The legal system must fully represent the people's will. That determines the legality of a modern country's governance. Second, the country must have a complete set of laws for all organizations, social groups and citizens to follow in their economic, political and social activities. An especially important principle is that public power must be authorized by the law before it can function. Third, the country's laws must not only derive their legality from their role as embodiment of the people's will, they should also be reasonable and scientific. In other words, the laws must be good rather than malignant. They must reflect society's demands, uphold fairness and justice and effectively protect citizens' legitimate rights and interests. Fourth, Constitution and laws are the supreme authority in state governance. All organizations and individuals must conduct their activities within the framework of Constitution and laws. Nobody is empowered to act beyond the limit of Constitution and laws. This is the true meaning of rule of law, which distinguishes it from governance by man.
The ideal state of modernized governance is good governance, in which the country and society are managed in a nice manner. It is a process of governing the country with the public interests maximized. Any society's governance may lead to four alternative results. The first possibility is that all stakeholders gain benefits without any loss – an all-win situation, or the so-called Pareto Optimality. The second possible result is that most members of society are benefited with only a small number of them suffering losses – a majority-wins-minority-loses situation. The third possibility is that a small group gets benefits while most people suffer losses – a minority-wins-majority-loses situation. The last possibility is that all members lose, though to different extents – an all-lose situation. Good governance means an optimized model of governance with the public interests maximized. It involves many essential elements, including fairness, public participation, stability, responsibility, accountability and clean government. Of these, rule of law is the overarching element. Without rule of law, all the essential elements of good governance become meaningless.
Fairness is the lifeblood without which the rule of law would lose its soul. On the other hand, rule of law is the protective screen without which fairness would lose its defense. Fairness, or being impartial and upholding justice, is in nature a reasonable and equal distribution of political, economic and other benefits among all social members. It means equal right, reasonable wealth distribution, equal opportunity and judicial fairness. Economic interests are the material basis of fairness and justice. To make our society a fair and just one, the most important thing we need to do is to keep the income disparity within a proper limit by adopting a reasonable wealth distribution mechanism, so as to avoid social polarization. However, social fairness is not limited to distribution of material wealth. It also concerns politics, society, culture, education and the judicature. Fairness and justice not only needs a material foundation but calls for an institutional basis as well. The most important institutional guarantee is rule of law, without which there would be no fairness and justice at all.
Public participation is also indispensable for good governance. It will not only lay a solid foundation to guarantee the people's status as the country's master but also an integral part of the country's mechanism of restraining public power and having the government policy in line with the public's interests. It is only through public participation that the values and all significance of democracy can be materialized. In other words, without public participation, there will be no democratic politics. Participation in state affairs is the basic way for the public to exercise their rights as a citizen. Public participation can effectively prevent the public power being abused and make public policies more reasonable and democratic. Participation is in itself one of citizens' values and virtues.However, large-scale public participation may also lead to disorder, even triggering a social or political crisis. International experience and lessons indicate that to prevent a consequent crisis, there should be more legal channels to accommodate public participation and make sure that the participation goes on in an orderly manner. While increasing ways of participation, the country should make laws to regulate the public's participation in politics. This is for the protection of citizens' legitimate rights. Thus it can be seen that only by exercising rule of law can the public's right to participate in politics be guaranteed while the social order is maintained. That will bring us closer to the ideal state in which the government and the public jointly run the state affairs.
Besides fairness and participation, all the other essential elements of “good governance” also rest on rule of law, including:
Responsibility. A basic requirement of good governance is that the government must fulfill all its statutory duties but refrain from doing anything that is not authorized by law; otherwise it will be blamed for dereliction and power abuse.
Accountability. The government, as the exerciser of public power, must respond to citizens' legitimate requests promptly and properly.
Transparency. This refers to the openness of political information. Every citizen is entitled to political information related to his or her personal interests, such as selection of government officials, legislation, making of state policy, administration process and public budget.
Clean government. This requires that government officials abide by law in public business, be honest in performing duties and do not abuse power for personal gains.
Stability. This means the orderliness and sustainability of public life, in which statutory public power and social order fare well.
It is obvious that the rule of law fashions and shapes the development of all the aforementioned elements. Without basic laws and regulations, every element of good governance may change its nature to the detriment of pubic order and even lead to malignant governance and finally harm the public interests. In a nutshell, rule of law is the prerequisite of good governance. Without rule of law, there will be neither good governance nor modernization of state governance.
