I am glad to have the opportunity of
visiting Chicago, the City in a Garden, at this beautiful time of the
year.It was 3 years ago when I last
visited the U.S., traveling to Washington, D.C., New York, Boston and San
Francisco.I was very impressed by the dynamism
of the American people, their intense sentiments for their country, and their dedication
to democracy and human rights. Such memories have urged me to come back time
and again, to learn more about the American people.Having been a lawyer most of my life, I wish
to speak to you today on the Rule of Law in China from the Hong Kong perspective.
I was born and brought up in Hong Kong,
which became a British Colony in 1842, not long after the city of Chicago itself
was founded. I had my primary and
secondary schooling in Hong Kong, and after matriculation I took up Articles of
Clerkship with a solicitors’ firm and became admitted as a solicitor in
1968.In those days, there was only one university
in Hong Kong, and there were no law schools.The first Law Faculty was established in about 1972. Qualification to become a solicitor or
barrister had to be acquired from Britain.Under colonial rule, patriotism was not
encouraged.In school, the Chinese
history I was taught ended in 1911, when the Qing Dynasty was overthrown.There
was a vacuum in the history of modern China between that point and the
establishment of the People’s Republic of China, a period I understood to be a
time of internal wars between warlords, followed by the Anti-Japanese War, and
then the war between the Nationalists and the Communists.
The People’s Republic of China was established in 1949.During the early years of its establishment,
many young people around my age from Hong Kong and overseas returned to study
or work in Mainland China.They were
full of hope and passion for China, and the new China they saw was the glory of
a nation as pictured in the People’s Magazine.Then came a series of revolutionary movements, including the
anti-rightist movements, the period of starvation, the Cultural Revolution, etc.
By the early sixties, due to the tense relationship on both sides of the
border, the flow of people and cargoes were almost completely halted.Young people from Hong Kong who had returned
to China were disillusioned and suffered greatly as a result of their
relationship with Hong Kong. Migrants
from the Mainland brought with them stories of horror, tragedy, torture and
suffering. In my younger days, China was
to me a backward, tyrannous and poor country.To me, and to many of my generation, the rule of law did not exist in
China.
With the opening up of China as a result of Deng Xiaoping’s economic
reforms, I resumed contact with my relatives in the Mainland in 1978, took
trips to many cities there, and began to slowly learn about and rediscover the
country which is my motherland.When
China and Britain started to discuss the future of Hong Kong, I felt obliged to
try to understand how my future would be affected when China resumed the
exercise of sovereignty over Hong Kong.In
the late 1990s, I was appointed as a delegate to the Guangdong Provincial
People’s Congress and later as a delegate to the National People’s
Congress.Under British rule, elections
of delegates could not be held in Hong Kong.Today, our delegates to these Congresses are elected and not
appointed.Because of my role as such a delegate,
combined with increasing economic activities between the Mainland and Hong
Kong, I began to learn about the rule of law situation in the People’s Republic
of China more seriously, and today am speaking to you on the rule of law
situation in China from Hong Kong’s unique perspective.
China has a history of over 5,000 years,
and began operating under a complete set of feudal laws nearly 2,500 years ago.
When China was exposed to imperialistic colonization in the mid 19th
century, it realized that it must modernize, inter alia, its legal system.After the collapse of the Qing Dynasty in
1911, the Nationalist government finally unified the country, and the Six Codes
were promulgated, forming the basis of the legal system of modern China.In 1949, the People’s Republic of China was founded
and the socialist legal system was introduced to replace it. Since then, the legal system has gone through a tortuous path. I shall divide the development
of modern Chinese legal history into 4 phases.
The first phase was from 1949 to 1957,
when China began to formulate its constitutional and judicial systems.The laws and legal system of the Nationalist Government
were totally discarded and a new socialist legal system based on the Soviet
model was adopted.The National People’s
Congress was elected in December 1953 and the Constitution was adopted in 1954.Extensive land and other reforms were carried
out.Drafting of civil law, criminal law
and criminal procedures began.Lawyers
were trained and the systems of people’s congresses and procuratorates were
introduced.It was advocated that state
organs must act in accordance with the law, and educational initiatives were undertaken to educate people about the democratic
concept of the rule of law.It was a promising
start.
The second phase lasted from 1957 to 1977.The new China was on its way to building up a
modern legal system, but there was a sudden turn of events after 1957- a
movement to purge the rightists and counter-revolutionaries started, and in
order to remove any impediment coming its way, the government closed down the Ministry
of Justice in 1959. Consequently, the rule of law situation deteriorated
drastically.Law faculties in
universities taught mainly political theories and regulations that met the
standards of the authorities.The
situation became aggravated by the Cultural Revolution between 1966 to 1976, during
which China’s socialist legal system was severely damaged.It was only in such a state of lawlessness
that the Gang of Four could have wrought havoc to the extent they did,
persecuting all they considered to be their political enemies and destroying
traditional Chinese culture and morals. During
much of this phase, , we in Hong Kong were saddened by the news coming from the
Mainland.Many compatriots decided that
they would never set foot on the Mainland again. This period eventually ended
with the purging of the Gang of Four, followed by the reform policies and
economic opening-up in 1978.
The third phase was the period from 1978 to 1997, during
which China promoted the development of a socialist market economy. Foreign
investments, particularly from Hong Kong, were encouraged.Promulgation of laws like the Sino-Foreign
Joint Venture Law, Economic Contracts Law, Sino-Foreign Cooperative Joint Venture
Law, etc. were necessary to guarantee the lawful rights and interests of
foreign investors.In 1982, the new
Constitution was adopted. Apart from economic rights, it ushered in an era of the
development of the rule of law by re-affirming equality before the law as prescribed
in the 1954 Constitution, but which had disappeared in the 1975 and 1978
versions. It included specific provisions
guaranteeing the inviolability of the personal dignity and freedom of Chinese
citizens and their various fundamental rights, and entrenched the system of the
People’s Congress, its Standing Committee, the State Council and the various other
state organs under the leadership of the Central Authorities with the
President, the head of the Communist Party, at its helm. The Constitution was amended in 1988 to permit
the private sector of the economy to exist and recognizing the right to
transfer land use despite the fact that all land still belonged to the State. In 1996, the National People’s Congress
adopted its “Ninth Five-Years Plan and Outline of Objectives for Long-term
Development towards 2010,” which included the objective of “ruling the country
according to law and constructing a socialist state based on a legal system”.Laws regulating administration emerged, such
as. the Administrative Procedure Law (similar to judicial reviews) enacted in
1989, the Law of State Compensation in 1994, the Law of Administrative
Punishment in 1996, and the Law of Administrative Supervision in 1997. During
this period, therefore, the country prospered not only because of economic
reform and more open policies, but more importantly, it had set off on the path
of reconstruction of the socialist legal system and the rule of law.
The current period began in 1998 and is continuing to this
day.In 1999, the Constitution was
amended expressly to include that “the People’s Republic of China exercises the
rule of law, building a socialist country governed according to law”. In 2002, the 16th National Congress
of the Communist Party of China vowed to improve on the socialist democracy and
socialist legal system. These developments, together with the comprehensive
implementation of the rule of law, are important and necessary goals for
building a moderately prosperous society (小康社會xiao kang shé hui). The Sun Zhigang incident (a case in which a
detainee under the Measures for Taking in and Sending back Vagrants and Beggars
in Cities died whilst being detained) that took place during the SARS outbreak in
2003 aroused a wave of discussion among scholars as to the constitutionality of
said Measures. As a result, the State Council revoked the Measures and
substituted them with the Measures for Assisting Vagrants and Beggars with No
Means of Support in Cities. In the 2004
amendment, the words “the state respects and guarantees human rights” were
added.It stipulated that the personal
dignity of citizens is inviolable, and that insult, libel, false accusation or
false incrimination directed against citizens by any means are prohibited.In 2007, the State Council introduced the
Regulations on Openness of Government Information, and ‘government for the
people’ (以民為本yi min wei ben) is now the declared policy of the Communist
Party of China and of the State Council.
During this period, China’s promulgation of law has not only
been confined to developing the economy, but increasingly has focused on public
administration, governance, and human rights (including rights for the
underprivileged). Additionally, more
emphasis has been placed on social legislation. For example, the Law on the
Protection of the Rights and Interests of the Elderly, the Law on Maternal and
Infant Health Care, the Law on the Protection of Minors, the Law on the
Protection of the Disabled, the Compulsory Education Law, the Labour Law, the Law
on Labour Contracts, the Law on Labour Disputes Mediation and Arbitration, the Law
on the Promotion of Employment, and many others. .
Legislative power is now regulated by the Legislation Law to ensure that bills will not
be passed or voted on without adequate consultation and deliberation in at
least 3 meetings of the Standing Committee of the NPC. The enactment of the
Property Rights Law is one such example.With China’s accession to the WTO, laws had to be revoked and amended,
and new laws enacted to comply with international standards of the trade of
goods and services.Laws had to be
published, legal proceedings opened and transparent and due process observed.
China has joined on its own volition 22 international human
rights conventions including the International Convention on the Elimination of
all Forms of Racial Discrimination, the Convention on the Elimination of All
Forms of Discrimination against Women, the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights
of the Child, and the International Covenant on Economic, Social and Cultural
Rights, along with other key international conventions.China may not yet have achieved the
international standard of human rights, but the aspiration is there.It shows China’s determination in promoting
and protecting the human rights of the Chinese people.
To summarize the rule
of law situation in China today:
lThe People’s Republic of
China governs the country according to law and makes it a socialist country
ruled by law.No laws or administrative
or local rules and regulations may contravene the Constitution.All state organs, the armed forces, all
political parties and public organizations and all enterprises and institutions
must abide by the Constitution and the law.No organization or individual is privileged to be above the Constitution
or the law. (See Article 5 of the Constitution).
lAll citizens are equal
before the law.The state respects and
guarantees human rights.Each citizen is
entitled to these rights and at the same time must perform the duties
prescribed by the Constitution and the law (See Article 33 of the Constitution).Lawful private property of citizens is
inviolable (Art. 13) and is protected by the Property Rights Law passed in 2007.
lMechanisms are in place for
complaints against arbitrary actions of the Government. Administrative
legislation enables citizens to challenge governmental decisions and ensure
better governance and accountability.Since
1999, over 80,000 disputes have been settled through administrative reviews
each year. The system of Written and
Personal Petitions (Xin Fang) was established for people to seek help and vet
their grievances when the courts fail to provide redress, and is ensured by the
Regulations on Written and Personal Petitions promulgated by the State Council.
lA system for the
supervision of government organs by the Standing Committee at various levels of
People’s Congresses is set up, giving the right of supervision to the Committee
and not to individual delegates.
lEnactment of legislation
is now regulated by the Legislation Law which ensures due process and proper
consultation.Laws are drafted by the
Legislative Affairs Office of the NPC and the State Council respectively,
instead of the ministries, to avoid a bureaucratic monopoly. Laws made by the
local or provincial people’s congresses are reported to the Standing Committee
of the NPC, which has the power and duty to examine them to ensure their compliance
with the Constitution and national laws.
lLaws for safeguarding
human rights referred to above have been promulgated, including the safeguarding
of political rights. Criminal Law and Criminal Procedure Law are amended from
time to time to improve on criminal justice.
lLaws relating to the economy
have been promulgated and reviewed to comply with the WTO and to ensure the uniformity
between foreign and domestic investments. From 2003 to 2007, the State Council repealed
49 administrative regulations which were obsolete and addressed 323 problematic
regulations and laws.
lAdministration of justice
has been improved steadily through making trials public, introducing the system
of people’s assessors, more rights for the suspects and accused, the right to
challenge the assignment of judges, promoting mediation, improving on the
finality of judgment, and reviewing the procedures for death sentencing.
lImprovement of the
professionalism of judges, procurators, lawyers, etc. There are over 130,000
professionals in China; includingprivate law firms as well as state subsidized law firms, and the legal
aid system has taken shape.More than
600 universities and colleges provide courses for Bachelor of Law degrees with
300,000 students currently majoring in law.More than 330 educational institutions are entitled to confer LLM and
doctorates in law and there are more and more foreign universities forming
joint ventures with Chinese universities to teach transnational law. Six uniformed judicial examinations have been
held and judges are recruited through public examination. Judges are given
in-service training both locally and overseas.
lThe judiciary has
undergone the first and second 5-year Reform Plans and the Supreme People’s
Court announced on 17 March 2009 that it has embarked on the Third 5 Year Plan.
Its tasks include improving on its distribution of duties and powers between
different strata of the courts, regulating sentencing and trial procedures, setting
up a proper non-prosecutorial system, enforcing judgments, strengthening
protection and training of judges, ensuring financial support from the
government, digitizing and opening up of information, etc.
You can see, therefore, that China
has come a long way from its establishment in 1949 in building up a society of the rule of law. Having
watched its development from Hong Kong, I am very proud of the efforts it has
made.The United States of America was
founded in 1776 and it has been almost 150 years since the unification of the
North and South after the American Civil War.It has been able to develop its legal system and the rule of law over
this period.Hong Kong was made a colony
in 1842 and except for 3 years and 8 months under Japanese occupation, it has
enjoyed stability.The English legal
system, which had already been a long tradition, was successfully transplanted to
Hong Kong and continues to grow along with our economic, social and cultural
development.The new China, however,
only has a history 60 years, and half of this was filled with turmoil and
calamities through which it has
learned how people suffer without the rule of law.I do not pretend that China’s rule of law
situation is perfect. It is not.There are complaints of corruption,
incompetence, and unenforceability of judgments and orders.That is why the State Council recognizes
that:
“…China’s legal construction is still facing some
problems.The development of democracy
and the rule of law still falls short of the needs of economic and social
development; the legal framework shows certain characteristics of the current
stage and calls for further improvement; in some regions and departments, laws
are not observed, or strictly enforced, violators are not brought to justice;
local protectionism, departmental protectionism and difficulties in law
enforcement occur from time to time, some government functionaries take bribes
and bend the law, abuse their power when executing the law; abuse their
authority to override the law, and substitute their words for the law, thus
bringing damage to the socialist rule of law, and the task still remains
onerous to strengthen education in the rule of law, and enhance the awareness
of law and the conception of the rule of law among the public.’
You will see,
therefore, that we are not content with China’s rule of law situation.The problems have been identified and
measures are being taken to rectify the situation, such as. by making sure that
the expenditures of courts are guaranteed and not dependent on local financial
resources allocations, by giving power to the courts for cross province
execution, by defining what are corrupt practices and by sending judges
overseas to study and conduct in-service training, etc.
When we talk about
the rule of law, we mean that the government’s power is derived from the law
and it must exercise its power under, and in accordance with, the law, everyone
is equal before the law, discretion must be exercised reasonably and
judiciously, justice must be accessible, there must be redress in court when
rights are violated, laws must be enacted fairly, etc. Therefore, the rule of law depends not only on
a proper legal and judicial system or a few good judges, but there also needs
to be well-trained lawyers fervently presenting cases and legal arguments
before the court, good administrators who abide by the law in formulating
policies and in legislative proposals, good law enforcement officers that
implement the law and adhere to
the law, and citizens who understand their rights and are
ready to stand up for them. All of these take time.After the abolishment of the legal system in
late 1950s, it has taken time for it to be rebuilt.China has done this in only 30 years, and I
consider it to be a great achievement.
The rebuilding of
a legal system and the rule of law is a difficult task, but China is determined
that its economic and social development must go arm in arm with the
development of the rule of law and democracy, and thus is taking steps
proactively to do so.China will be
celebrating its 60th Anniversary this year.We, as Chinese citizens living in Hong Kong,
are proud of the achievements our country has made in the past 60 years.A citizen’s fate is tied up with that of his
country. When China has achieved successes in its economic development, in
hosting the 2008 Olympics, in sending astronauts into space, in being accepted
as one of the important members of the global political stage, we became
ecstatic.When China suffered in famine,
in earthquakes, in flooding, in political movements and the Cultural Revolution,
we shared its grief.When there have
been complaints against the rule of law being violated in the Mainland, we have
also felt the pain of it.I often asked
myself: what can I do to assist in China’s reconstruction of the rule of
law?How can I help?
Hong Kong is a
Special Administrative Region (SAR) of the PRC.Under the ‘One Country, Two Systems’ concept, socialism is practised in
Mainland China and capitalism is practised in Hong Kong.The national laws of the PRC do not apply to
Hong Kong except for those regarding sovereignty, including defense and foreign
affairs.Certain international
conventions to which China is not aligned are applicable to Hong Kong. Under
the Basic Law, the previous legal system continues to be in force in Hong Kong.
As such, it would be improper for Hong
Kong to impose the requirements of our Common Law system on the Mainland.However, by frequent contacts and exchanges,
we may expose the Chinese legal professionals, including judges, prosecutors,
lawyers and law enforcement officers. to our system; the experience is useful
to them.
It is encouraging to note that after
Hong Kong formally adopted the system for tape-recording interrogation of
suspects by police and the ICAC, China adopted the same system last year.Last week when I visited Shantou, a city in
southern China, I found that the local government was carrying out serious reviews
of local legislation, regulative measures and policies to ensure their legality,
a task undertaken by the Legal Policy Division of the Department of Justice in
which I served for 8 1/2 years after the establishment of the HKSAR.Earlier this month, I had a meeting with 30
young judges who came to Hong Kong to attend a LLM programme organized jointly
by the City University of Hong Kong and the Columbia Law School of New York.They will study Common Law for one year and
the programme includes a study trip to Washington D.C., the U.S. Supreme Court
and the U.S. Department of Justice. There are many joint-ventures of this
kind.As the Vice Director of the Hong
Kong Basic Law Committee, a working unit under the Standing Committee of the
NPC, I am entitled to attend, and do attend, meetings of the Standing Committee
of the NPC every alternative month for 4-6 days in Beijing.Listening to the debates in these meetings
enables me to understand the situation in different parts of China and observe
the improvements in the standard of legislative processes.Occasionally, I will also take up individual
cases with government officials, but in doing so, I am careful not to interfere
with the independence of the judiciary, a cornerstone of our society.
The legal system of the PRC is
prescribed by its Constitution. The Constitution provides for the mode of
government and a socialist legal system agreed upon by its people.It is a system that we cannot change.What we can change are procedural regulations
which would provide fair trials, good governance and an open legislative
process.It would be useful to share our
administrative, legislative and judicial experiences with officials, academia
and others in the Mainland and show them the value of such common law concepts
like judicial independence, impartiality, etc., so that they may adopt such
parts of our practices as are appropriate to their system.Procedural propriety is important in ensuring
the rule of law and by emphasizing the adherence to due process; it will certainly
elevate the standards of the administration of justice.In China, the legal framework is there, and
the will to improve on the rule of law is there.What it requires is more time, technique and
experience for the empowerment of government officials, judges, lawyers and law
enforcement officers to achieve fairness in administration and in the conduct
of investigations and proceedings.In this
respect, many Hong Kong compatriots have made their contribution, and I hope
that the universities in the United States will also help.
