Rule of law must be the foundation of Chinese governance
Hu Shuli says since the concept was first discussed in 1979, it has gained public approval and must remain the acceptable option in a modern world
China's top leaders have been meeting this week on how to strengthen the rule of law. At the fourth plenum of the Communist Party's 18th Central Committee, which concludes on Thursday, the focus has been to improve the institutions that safeguard the abuse of power. Further, it is hoped that the crackdown on corruption will lead China to modernise its governance.
As officials well know, China must build a "firewall" against corruption. Since early last year, the government has worked on the belief that while it must address the root causes of corruption, the focus in the beginning must nevertheless be on tackling the symptoms, in order to buy time to find and implement longer-term solutions. Arguably, it's time now for the corruption fight to lead to governance reform.
Although many concrete safeguards are not yet in place, there is now a framework for action. Among the new measures, some are already working. Of particular note are the rules concerning plea agreements.
On October 13, the Procuratorial Daily, a publication of the Supreme People's Procuratorate, revisited the old case of Yu Zhendong, the corrupt former head of the Bank of China's branch in Kaiping, Guangdong. Yu, who was wanted for bribery and embezzlement, had fled to the US in 2001. On China's request, US authorities arrested him for immigration violations a year later and eventually repatriated him to China, after negotiating a plea agreement in which the Chinese government promised he would not be tortured or put to death, in exchange for a guilty plea.
Plea bargains originate in the US justice system. They are agreements between the prosecutor and the defendant, under which the defendant will plead guilty in return for some concessions, such as a lesser charge or a recommendation for a more lenient sentence. Thus, a plea deal allows both sides to avoid trial.
In America today, about 90 per cent of criminal cases are settled through plea agreements. They are also increasingly used in Italy, Germany, Russia and other jurisdictions.
Under revamped, simpler rules on criminal suits, China's top courts and prosecutors appear to have introduced elements of the plea bargaining system into the legal system.
The Chinese public's No 1 concern with its justice system is the severity of the punishment in criminal cases; next are worries about its timeliness and consistency. The more liberal use of plea bargains in white-collar crime, for example, can help to improve efficiency while protecting fairness.
In corruption cases, it can also help to strengthen the rule of law and reduce decisions that favour expediency over propriety.
It's important, therefore, that the authorities carefully consider the potential pitfalls before promoting the use of plea bargaining. To prevent it being used as a tool by the powerful, the government must ensure greater transparency and proper relations between the judges, prosecutors and defence lawyers.
From the lawless days of the Cultural Revolution, the concept of rule of law has changed drastically over the past 30 years.
It was in 1979 that the rule of law was first proposed as a system to counter the rule by people. After the painful lesson of the Cultural Revolution, legal scholars said China had no choice but to accept the rule of law. In the 1980s, the concept gained popular acceptance.
Finally, in September 1997, the 15th Central Committee declared rule of law the basic strategy of national governance, and defined it thus: "Under the rule of law, the people will - under the party's leadership - be governed according to the constitution and the law." The rule of law extends to all national matters relating to the economy and society, it says, and will lead to the realisation of a socialist democracy. Such a system will not change on the whims of its leaders, it says.
In 1999, the rule of law was written into the Chinese constitution. In 2004, the respect for and protection of human rights was added.
It should be clear that the rule of law will form the basis of Chinese governance now and in the future, and is fundamentally incompatible with an authoritarian system of government. The laws that govern a society must be based on sound, objective reason, and no one can be above them. This is the only way to protect relationships in society and human rights for all.
The 18th Central Committee under Xi Jinping recognises this evolution. Xi himself has on several occasions hailed the importance of the rule of law. Most recently at the celebration of the 60th anniversary of the National People's Congress, he pledged to uphold the idea that all are equal before the law.
We are still a long way off from being a society under rule of law. Now, as critics question the necessity of going down this path, there must be no turning back. Both the leaders and China's 1.3 billion people must demonstrate this resolve.
This article is provided by Caixin Media, and the Chinese version of it was first published in Century Weekly magazine. www.caing.com