Rule Of Law In China: Progress And Problems. Lin Li
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enacted nationally after the experience has been evaluated and improvements have been made. Individual legal provisions can be revised or supplemented one at a time, as necessary; there is no need to wait for a comprehensive revision of an entire body of law. In short, it is better to have some laws than none, and better to have them sooner than later”.3 These thoughts were accordant with the then practical situation, thus became the guiding principles for construction of the rule of law in China for some time after 1978, and were of great significance in accelerating the pace of the construction of the rule of law and in promptly solving the issue of “no laws to abide by”.
On December 18, 1978, the Third Plenary Session of the 11th Central Committee of the CPC was held. The plenary session emancipated people’s mind to profoundly summarize the experience and lessons since the founding of New China. It elevated democracy and rule of law to a new high and made itself a milestone in the history of the rule of law in New China. The session maintained that in order to ensure people’s democracy, “we must strengthen our socialist legal system, which will enable democracy to be institutionalized and codified, and ensure that such a system and laws are consistent, continuous, and authoritative. All this will ensure that there are laws to go by, that they are observed and strictly enforced, and that violators are brought to book. From now on, we should put legislative work on the agenda of NPC and its standing committee. Procuratorial and judicial organs should keep due independence; they should stand faithful to laws, systems, people’s interests, and truths; they should ensure that people are equal before their own law and allow no one to have the privilege above the law”.
The beginning of legal construction in the new period was signified with large-scale legislation in 1979. In July, 1979, the Second Session of the Fifth NPC passed seven important laws, i.e. Criminal Law, Criminal Procedure Law, Organic Law of Local People’s Congresses and Local Governments at all Levels, Election Law for NPC and Local People’s Congresses at all Levels, Organic Law of Courts, Organic Law of Procuratorates, and Law on Chinese-foreign Equity Joint Ventures. “It is the first time in China’s history of socialist legislation to pass so many important laws at one meeting”.4 During the NPC session, Deng Xiaoping pointed out: “This session has formulated seven laws… This is a necessary precondition for creating a political situation of stability, unity, and liveliness… Following this session, we shall formulate a series of laws, such as civil law, which we haven’t got yet. We also need to enact laws governing economic development, such as those pertaining to factories. We’re now in need of laws, some hundred laws. Therefore, we have much work to do and this is just the beginning”.5
In September 1979, the CPC Central Committee released Instructions on Resolutely Ensuring the Implementation of Criminal Law and Criminal Procedure Law (No. 64 Document issued by CPC in 1979), which stated that the promulgation of the criminal law and the criminal procedural law were of particular importance for strengthening the rule of law in socialism. Whether they can be strictly implemented was an important indicator of whether or not China implemented the socialist legal system. The Instructions on Resolutely Ensuring the Implementation of Criminal Law and Criminal Procedure Law criticized some phenomena long-existing in the past, including despising the legal system, ignorance of law when there was a policy, substituting law with leaders’ words, and suppressing law with power, etc., and made explicit demands on how the Party committees should lead the judicial work: “(1) They shall act in strict accordance with criminal laws and criminal procedure laws, and resolutely alter and correct all the wrong thoughts and practices contravening these laws. Leaders of Party committees at all levels shall not regard their personal opinions as laws or force others to implement their opinions. (2) The Party’s direction over judicial work focuses on offering guidelines and policies. The most important way to strengthen Party leadership is to truly guarantee that people’s procuratorate and courts exercise their own authorities independently without the interference from administrative organs, groups, and individuals. (3) They shall rapidly improve judicial organs at all levels, and strive to build a strong team for judicial work. They shall publicize laws broadly and thoroughly to make preparations for officially implementing criminal law and criminal procedure law. Party organizations at all levels, officials, and all the Party members should take the lead in observing the law. The principle that everyone is equal before the law must be stuck to. No citizens shall be allowed to break the law, and no privilege shall be allowed to override the law. The system of case approval by part committees at all levels should be canceled. The system of examination and approval of cases by Party committees at all levels should be canceled”. The No.64 Document is considered as an important sign indicating the beginning of a new stage of socialist legal construction in China.
Along with the continuous strengthening of the legislative work, other aspects of the socialist legal system were restored and rebuilt. On September 9, 1979, the CPC Central Committee released instructions emphasizing “It is necessary to strengthen the Party’s leadership in judicial work to truly ensure that judicial organs exercise the authorities stipulated by the Constitution and laws. The Central Government’s leadership in judicial work focuses on formulating documents and policies”.6 At the same time, the Central Government instructed that “we should improve judicial organs at all levels quickly and strive to organize a forceful judicial workforce”.7 The 12th Session of the Fifth NPC in 1979 and the Second Session of the Sixth NPC Standing Committee in 1983 made supplements and modifications on Organic Law of the People’s Court, and the organization of the People’s Courts was thus further improved.
In March 1978, the First Session of the Fifth NPC passed the Constitution of the People’s Republic of China and Article 43 of the Constitution stipulated the reconstitution of the people’s procuratorate. On June 1, the Supreme People’s Procuratorate went into operation officially. On July 1, 1979, according to the Constitution, the Second Session of the Fifth NPC reviewed and passed the Organic Law of the People’s Procuratorate of the People’s Republic of China.
Public security, judicial, administrative, and safety organs were restored or rebuilt. On June 15, 1979, the political and legal team of the CPC Central Committee submitted Suggestions on Restoring Judicial Organs to the CPC Central Committee. On September 13, 1979, the 11th Session of the Fifth NPC decided to rebuild the Ministry of Justice on the basis of sound preparations “so as to adapt to the needs of socialist legal construction and strengthen judicial and administrative work”.8 Following this, local judicial offices at all levels were established, and judicial and administrative work was restored.
The Criminal Procedure Law and the Organic Law of the People’s Court promulgated in July 1979 clearly stipulated that the defendant could entrust a lawyer to defend him. In early 1979, Hulan County, Heilongjiang Province (the northeast province of China) began to offer lawyers to undertake criminal defense work. Later, Beijing Municipality, Shanghai Municipality, as well as seven cities and counties including Daqing and Harbin of Heilongjiang Province and Bishan of Sichuan Province restored lawyer organizations and some lawyer practices were carried out. By October 1980, there had been bar associations in Henan, Shaanxi, and Shandong Provinces, and preparatory meeting or preparatory leading groups for bar associations had been set up in 17 provinces and municipalities including Beijing, Tianjin, Shanghai, Liaoning, Heilongjiang, Jiangsu, Gansu, etc. There were 381 legal advisory offices and more than 3,000 full-time lawyers nationwide. In August 1980, the 15th Session of the Fifth NPC discussed and approved the Provisional Regulations of Lawyers of the People’s Republic of China.9
In January 1980, the Central Committee resumed the Central Political and Legal Committee.
In July 1982, China Law Society was established. Chinese Journal of Law, Democracy and Legal System, Jurisprudence Daily, and other major law journals have been resumed or started.
In June 1983, the State Council submitted a proposal to the First Session of the Sixth NPC to set up the Ministry of State Security so as to strengthen its leadership in national security work. On July 1, 1983, the founding conference of the Ministry of State Security was held. The Ministry of National Security consisted of the former Ministry of Central Investigation, the Political Security Bureau of the Ministry of Public Security, some units of the United Front Work Department of CPC Central Committee, and some units of the State Commission of Science and Technology for National Defense Industry.