March ahead with rule of law

Editor's note: The following are some experts' opinions on the Fourth Plenum of the 18th CPC Central Committee that ended on Oct 23:

Chinese version of judicial review system

The system to ensure and supervise the implementation of the Constitution should be improved, according to the Communist Party of China's latest announcement on "comprehensively advancing the rule of law".

The proposed system could be perceived as a Chinese version of the judicial review system, which has been adopted by many Western countries, including the United States and Germany. In other words, the implementation of the system has to be different in different countries.

Unlike the US and Germany, where the judicial authority and constitutional court exercise the power of constitutional review, China adheres to the leadership of the Standing Committee of the National People's Congress.

For China's judicial review system, institutional reform is expected to take place after the Fourth Plenum of the 18th CPC Central Committee, which concluded on Oct 23. The previous system, which often failed to clarify what constituted unconstitutionality, led to a number of controversial cases in which officials abusing administrative powers violated citizens' constitutional rights.

Hence, a distinct organization is likely to be established to help the NPC with judicial review. Of course, such an organization has to function under the NPC.

Moreover, amendment to, and legislation, abolition and interpretation of laws will now get equal importance. Earlier, China's top legislature tended to focus on amendment to and abolition of laws, and paid less attention to interpretation. This will change, because interpretation of, as opposed to amendment to, existing laws could actually help solve some tricky cases.

Besides, to separate the bad laws from the good, the NPC is likely to set up a sound judicial review system.

Yao Guojian, a researcher in Constitution studies at China University of Political Science and Law

Follow own path to establish rule of law

A country's constitution is a body of fundamental principles or established precedents according to which a state is to be governed. The Communist Party of China is the ruling party in China. The Party constitution is the fundamental law that all Party members have to follow; it can also be regarded as a guideline for the Party's leading role.

The Party constitution makes it clear that the Party should abide by the country's Constitution and laws, while the latter legalizes the Party's leading role in all aspects of the nation. The State organs as well as the State's decision-making process should all be under the leadership of the Party, according to the Constitution, and the rule of law is no exception to that. It is, therefore, important that people understand China's rule of law by linking the country's Constitution and Party constitution.

China may need to learn from Western countries' experiences to promote the rule of law. But since the rule of law is a means of social governance to achieve social justice, China has to take a down-to-earth approach and follow its own path to establish the rule of law.

Qiang Shigong, a professor of law at Peking University

A guideline to safeguard sovereignty

The communiqu?? issued by the Fourth Plenum of the 18th CPC Central Committee says China should strengthen foreign-related legislation and use legal means to safeguard its sovereignty and security, and development interests. This requires undertaking concrete tasks to improve the country's legal system.

China is both a beneficiary and protector of the extant international order, even though it is opposed to certain aspects of the order. And given that it is opening up further to the outside world, China needs to maintain close links with the international community. But increased exchanges and deepening cooperation with the rest of the world will surely give rise to more problems and disputes. How to handle these problems and disputes remains a big issue for China, and this is where the rule of law can play a vital role, for it can help resolve them in a relatively reasonable way.

To take care of its security problems, especially those that threaten national (or military) security, China should strengthen communication with other countries, especially the United States, to make its stance clear and, if possible, reach an understanding, but without compromising its interests. To resolve issues related to sovereignty, especially political independence and territorial integrity, China must turn to history and international laws. But since these are complicated and sensitive issues, and could seriously influence national sentiments if not handled properly, China should exercise calm and patience in its efforts to resolve them.

More importantly, China should make the rest of the world know that it will use peaceful methods, including legal means, to resolve disputes, including those over development and security issues, with other countries. This will prevent misunderstandings with other countries and help the cause of world peace and prosperity. Also, China should offer a sound basis and guarantee for settlement of such issues through legal means.

Jin Yongming, a research fellow at the Institute of Law, Shanghai Academy of Social Sciences.

Specific mechanisms needed to reach goal

The communiqu?? issued by the Fourth Plenum has outlined the reforms of many existing mechanisms, but the most important of them all is the overall target of the CPC's current drive, which is "to advance the rule of law" to build a system to serve "the socialist rule of law with Chinese characteristics" and establish "the socialist rule of law" in the country.

This is a huge qualitative progress from "rule by law". The CPC's new target makes it clear that the government too comes under the rule of the law.

To achieve the goal, the communiqu?? says, theories of socialist rule of law with Chinese characteristics, systems of laws and regulations, efficient law enforcement, strict supervision and effective guarantee systems, and an all-encompassing intra-Party law mechanism are essential.

These are detailed mechanisms to support the system of "socialist rule of law". Only by establishing these mechanisms can the overall goal be achieved.

Zhang Hengshan, a professor of law at the Party School of the Central Committee of the CPC.

A stern warning to Hong Kong protestors

By reiterating its faith in the "One Country, Two Systems" policy - as mentioned in the communiqu?? issued by the Fourth Plenum - the Party has issued a stern warning to the "Occupy Central" protestors in Hong Kong. The communiqu?? specifically says that the protestors should remove all barricades and barriers from the streets of the international financial and logistics hub.

By continuing to defy a court order and refusing to clear key roads in Hong Kong, the protestors have shown their disregard for the rule of law.

Although the central authorities will continue to deal rationally with the "Occupy Central" movement, the protestors should know that there will not be any compromise on Hong Kong's political reform. The candidates for the post of Hong Kong's chief executive will have to get the approval of the Nominating Committee because it is a procedural requirement that is clearly stipulated in the Basic Law.

Some people in Hong Kong have cast doubts on the central authorities' governance because there is room for improvement in the rule of law. Yet the communiqu?? should be seen as a big step by the central authorities, led by the Party, to carry out those improvements. Also, the central authorities have reiterated that they will promote the practice of "One Country, Two Systems" strictly in accordance with the law.

Residents and officials in Hong Kong across the social and economic divide have accused the "Occupy Central" protestors of violating the law. Therefore, to safeguard the rule of law, the students should call off their protest and the ill-intentioned instigators should be penalized for their actions according to law. After all, the Party's consistent efforts to promote the rule of law will not only end the misunderstandings over political reform, but also boost the stability and prosperity of the city.

Zhang Dinghuai, a professor at Shenzhen University and member of Chinese Association of Hong Kong and Macao Studies.

A welcome move to deliver justice

The cross-region circuit court system, proposed by the communiqu?? issued by the Fourth Plenum, is expected to facilitate the handling of judicial cases filed by the public. Also, the authorities will explore the possibility of setting up courts and procuratorates whose jurisdiction spans different administrative regions, as well as developing a system that allows prosecuting bodies to register public interest litigations.

Local vested interests, including enterprises and officials, are more likely to interfere in cases, especially those related to economic issues, are registered locally. Besides, local court officials and procuratorates could turn a blind eye to protectionism in order to protect local interests. The moves to rule out such possibilities reflect the Party's determination to boost judicial independence and eradicate local protectionism and industrial monopoly in the country.

The ultimate purpose of the proposed circuit court and the existing cross-region trial system may be similar, but they would be different in terms of duration and effectiveness. Though cross-region trials are often applied to national and major cases, they vary according to individual cases and don't have uniform norms. The proposed circuit court, on the other hand, is supposed to be a standing trial mechanism exclusively for cross-province and complicated cases aimed at ensuring total judicial fairness.

This is not to say that the cross-region trial system should be abolished. It could act as a supplement, if not a substitute, to the circuit court system. And to rule out the possibility of local interference, administrative regions must cut across provinces, and all circuit court judges should be qualified and capable of handling major cases.

Feng Yujun, a professor of the School of Law, the Renmin University of China