3.1 Bottom-Up Mode of “Budget Parliamentalism”

I first suggested this conception of “budget parliamentalism” in 2003,Footnote ¹² which seemingly occupies a central place should we examine it from the perspective of using state-owned assets to protect social security or resource redistribution. The design of “budget parliamentalism” aims to concretize and enhance the function of budget review by the NPC as provided in the Constitution and the law, so as to convert step by step people’s congresses at all levels into public forums for a substantial review of the budget on taxation, fund allocation, subsidies, and fiscal redistribution.Footnote ¹³

Needless to say, an enhancement in this aspect does not entail a weakening of other functions by the NPC, such as the powers of legislation, decision-making, appointment, and supervision;Footnote ¹⁴ on the contrary, it only emphasizes the need to concretely remedy the current problem of “parliament without parler” (yihui buyi ) via budget review as the breakthrough point. The so-called budget is the programme of resources allocation, also a monetary manifestation of policy.

The central task of politics is to allocate resources in accordance with policy goals. In other words, the NPC as an organ of state power starts its institutional reform from the implementation of “fiscal democracy,” to reshape the political landscape through reshuffling the management of resources.

Fiscal democracy can start from aspects with greater immediacy and relevance to people’s welfare and roll out in a bottom-up manner. For instance, people’s congresses at the town and county levels, in which electors are interested and able to participate directly, should adopt in the fastest possible manner “budget parliamentalism,” and then this will be gradually expanded to their counterparts at the municipal, provincial, and national levels.

In order to maintain the speed and benefits of economic growth, there is a need to adopt a policy of capital accumulation beneficial to enterprises. Nevertheless, to maintain political legitimacy also requires winning the support of the masses (especially the middle- to low-income strata) through welfare and social security policies. Here it will be inevitable to engender social division based on stratification and interest groups, and policy debates within the state apparatus. For this reason, there is indeed a place for interest co-ordination and opinion competition, as well as for making corresponding rules and selecting agents. In this sense, budget parliamentalism will not only change the operational focus of people’s congresses at all levels, but also replace their way of conduct and constituencies.

The design of budget parliamentalism can organically combine SOE reform and social welfare rearrangement with a transition in governance, as well as connect political and economic reforms.

It will also benefit the learning of compromise skills during the making and review of fiscal budgets by interest groups and political forces, hence improving in a piecemeal manner policy competition and participation in political decision-making on the part of the people’s representatives. If the result of budget review truly concerns the immediate interests of various groups, the amount of attention paid to representatives will increase, hence helping to enhance and reform the functions of people’s congresses.

What needs to be emphasized here is that budget parliamentalism will not focus the axis of political competition on such sensitive issues as political regime and ideology, where it does not concern the issues of party formation or the CPC supremacy; neither will it concern other issues prone to result in sentimental reactions. On the contrary, it will only concern itself with welfare issues, enabling a seamless interconnection between economic and political reforms as regards “enlarging the pie” and “a fair share of the pie.”

To set budget review as the main axis of political reform can help with the specialization of people’s representatives. For one thing, it requires expertise and special perception to peruse and understand various kinds of statistical reports and computation results. It will also help with mass participation, as the fiscal budget concerns everyone’s immediate interest. At the same time, the practice of selecting and deciding by balancing different interests can contribute to the cultivation of an essential citizen capability, namely that of political deliberation.

Should budget review begin to have a substantial impact, citizens will pay closer attention to activities in people’s congresses, their presence during discussions and decision-making, and the questioning of “Who really represents taxpayers’ interests?” or “Who really represents my interests?” This will in due course drive forward a reform in the election process, the interaction between people’s representatives and electors, and the live broadcast of review processes at people’s congresses.

In other words, citizens will take their legal rights more seriously. Once this is done at the technical level, it will bring to the fore a chain reaction in institutional logic, by which political reform can be gradually carried out with tranquillity.

Budget parliamentalism has benefits not only in the more effective control of the executive power by people’s representatives, but also in the government’s capability to take socially oriented independent responsibilities and political risks. This is not to mention that during the initial phase of political reform, a budget-centred parliament can benefit from the maintenance of the social stability needed for economic growth, by means of an appropriate limitation and a gradual monitoring of the scope and speed of democratization.

More importantly, a substantial discussion of the national budget will doubtless stimulate the interests of local governments and social forces in coming to the central public forum for negotiations and bargaining, hence will help with greater local autonomy plus the maintenance of central cohesion.

Based on this understanding and prediction, there is a need to start as soon as possible the preparation, and implementation at an opportune moment, of the direct election of people’s representatives at the municipal and provincial levels, so as to achieve fiscal democracy at the national level in one go.

3.2 Administrative Accountability and the Mode of “Grand Accounting” (dashenji )

Political reform should first of all be directed towards the law curbing abuses of power, and establishing a “rule of law government” (fazhi zhengfu ), which by definition means not only governance via the law, but also the establishment of guidelines of administration in accordance with the law (yifa xingzheng ), while recognizing the supremacy of the law, the power by the judiciary to render final decisions in adjudication, and the priority of judicial over executive power as regards legal interpretation.

As for the institutional design of the rule of law government, the most fundamental aim is to ensure the neutrality of state power, in that an independent, specialized bureaucracy plus administrative transparency can help to prevent public policy-making from being biased towards some interest group(s), the defect of selective implementation, and the private use or abuse of public apparatus. For this very reason, a heavy hand in anti-corruption campaigns and cleaning up the civil service workforce needs to be coupled with institutional checks and balances on executive power, and a strict enforcement of law and punishment for any act of violation.

As for the neutralization of state power, it is of particular significance to improve the system of administrative litigation under the premise of judicial independence and reform the over-partisan civil service system. This series of reforms will involve a redefinition of executive power, to be finalized in the formation and improvement of administrative accountability mechanisms.

In the 1980s, János Kornai’s theory of the softening of budget constraint in enterprise was quite popular among Chinese economists.Footnote ¹⁵ According to Kornai, a paternalist government will offer bailouts to enterprises in cases of difficulty, despite whether the latter is in good shape, which results in low efficiency in enterprises. The guiding idea of economic reform back then was to enhance the strength of budget constraint in enterprises, imposing on enterprise owners a sense of the risks of failure, loss, and the pressure of unemployment, and of accountability for liquidation and bankruptcy, so as to improve productivity. The reason that the introduction of a bankruptcy law attracted wide attention was due to the strengthening of budget constraints. As a matter of fact, the softening of budget constraints in China cannot be seen only in enterprises, but also in the government.

The reason that local governments can audaciously engage in super-projects is that they are well aware that the central government will bail them out when things go wrong. Such expectation on bailouts by the central government has resulted in excessive waste, leading to a loss of rationality and efficiency in economic decision-making and management by local governments. For this very reason, we need to prevent the softening of administrative budget constraints via accountability reviews (wenze shenji ), and to limit the executive power via the legalized means of financial statements.

It needs to be emphasized here that the target we aim for is not just a mere limit to be placed upon executive power. An overhauling reform breaking the stagnant grid of vested interests requires a relatively strong and efficient power, albeit with the need to limit the abuses of power at the same time. The benefit of accountability review lies in its ability to limit executive power while at the same time improving administrative efficacy. This will enable government agencies to fully mobilize human resources, capabilities, funds, facilities, power, and obligations for the achievement of certain policy goals.

Accountability reviews can embed politics into administration, and then administration into government finance. It can change the command-style adjustment of policy goals into the indirect monitoring or distribution of fiscal resources, for which special attention will need to be paid to both reasonable standards for evaluation and feasible methods of supervision. In this way, both political resources and administrative power will become calculable. As long as they are calculable, they will become accountable and predictable.

In this sense, the reform of accountability review is of particular importance to the building of a rule of law government. This is particularly the case in our contemporary age when we are faced with a local government debt crisis, where it will not be possible to make correct judgements and take proper actions should we not clearly know the balance sheet. It thus becomes urgent to clear up local debts—a task with its completion dependent upon accounting.

Through accountability review, we can effectively drive forward administrative reform, more effectively targeting such actions as shutting down redundant agencies, trimming the civil service workforce, anti-corruption, and stopping the waste of resources.

Such trends as more of a market economy, diversification, and greater risks will render the evaluative standards internal to administration more complex, while globalization will lead to the adoption of international standards—all these require rationality in planning and design in the making of a budget, as well as inducing reforms in accounting institutionalization, procedures, and rules.

In the sense of deciding the priority of a policy or measure, as well as the comprehensive co-ordination of the interests and activities of different government departments, budgets and accounting are not only the most important measures of effective governance for modern government, but also the key to enhancing administrative predictability and the leadership of government officials. Accounting is a measure to enhance efficacy in implementing budget and internal supervision. Accountability via review, on top of the magnified effect of accountability, requires a closer combination of accounting with the final accounting and supervision procedures at people’s congresses.Footnote ¹⁶

It is commonly perceived that accounting is only a technical matter in examining accounts or records—a perception which, though not wrong, is outdated. As a matter of fact, accounting as the intermediary link between budget and final accounting is concerned with not only technicalities, but also politics, as it can penetrate all administrative activities. It is precisely on this recognition that some developed countries have introduced a policy budget system, to tailor-make budgets to policies with a quantified evaluation of results—a system that has compelled us to recognize the role of final accounting in fiscal supervision, on the basis that it was even proposed that the Senate play a bigger role in final accounting.Footnote ¹⁷

In fiscal supervision, there is a change from political to legal supervision. For instance, in France, government finance is regulated by the laws of budget and final accounting, thus establishing the personal accountability of government officials in public finance. It also enables fiscal adjudication and constitutional litigation to review the lawfulness of certain rules or measures and to hold government officials to account.Footnote ¹⁸

In the Anglo-American system, the accounting office is subsidiary to the congress or parliament. In France, the accounting office used to report directly to the monarch. Under this French influence, Japan placed the accounting department under the emperor’s direct leadership before World War II. Although the current Constitution in Japan provides that the Department of National Accounts should report to Congress via Cabinet, its nexus with the prime minister is severed, thus becoming a highly independent administrative body. However, in recent years, institutional changes in France have demonstrated an emphasis upon the position and role of the accounting office as the subsidiary body or information provider to Congress, and an enhancement of the management of policy evaluation by the accounting office.Footnote ¹⁹

Without the aid of the accounting office, it will be difficult for people’s representatives to deepen and concretize their budget reviews, to which extent the essence of fiscal democracy lies in information-based governance. For this reason, budget parliamentalism is closely connected with accountability review, to be proposed as an auxiliary measure to political reform. Correspondingly, administrative reform to rearrange administrative and fiscal power can to a large degree be driven forward through the legalization of double-entry bookkeeping and financial statements.

Administrative reform has another important issue, namely to reduce items for approval in accordance with the needs of market economic development, so as to improve the efficiency and fairness of governance. Needless to say, to reduce government interference in the economy and society is merely a matter of rationalizing state power. Nevertheless, for Chinese society, “official prioritism” (guanbenwei ), the administrative reform of decentralization, interference reduction, and slimmer government actually acquires the significance of revolution and self-revolution, which will, more often than not, lead to tremendous resistance or crafty distortion by government bureaus, as well as to total failure and dissolution in the guanxi networks of mutual concealment among bureaucrats (guanguanxianghu ). In order to prevent such results, and to enhance the efficiency of administrative reform, there is a need to resort to the support of vox pop to suppress resistant forces and to increase the pressure of public opinion. Only through information disclosure and the freedom of expression will it be possible to exert enlightened checks and balances on power, and to achieve the restraining of government actions by legal rules.

To examine administrative reform from this perspective requires us first of all to accurately define at the political level how far information should be disclosed, and the extent of the freedom of expression. From this it can be seen that the much-discussed Press Law draft should be promulgated in a timely manner, so as to exert a substantial impact upon the expansion of the room available to thoughts and expressions, on the basis of which a clearly defined market for opinions will gradually take shape.

3.3 To Invigorate the Constitution and Other Institutions via Judicial Review

Whether a rule of law government has been successfully established can be verified by the standard of the mode of existence of judicial power, especially the procedural fairness and the rate of winning the lawsuits of “citizens bringing government officials to court” (mingaoguan ).

To check and balance executive power by judicial power has been an institutional mechanism central to constitutionalism, for the purpose of preventing the abuses of coercion, the violation of civil rights, and of treating government and individuals equally in front of the law. In this sense, the judicial organ, especially the Supreme Court or the Constitutional Court, should play the role of upholding the Constitution; only this way will it be possible to avail rationale and power to check and balance other powers.

The Constitution is the core consensus among individuals, society, and government, this being the foundation of social order in the modern state. A Constitution that wins citizens’ hearts and souls can avoid the unnecessary proceedings and rising costs of “one meeting for each and every matter” as a mode of individuated handling, unite citizens of diverse identities, educational backgrounds, races, party affiliations, and religions, and provide a basic framework for social life.

To put the Constitution into real practice requires us to adopt the principle of the “sovereignty of the Constitution” (xianfa zhishang ), while at the same time to enhance the roles played by judicial power. For this very reason, the Supreme Court or the Constitutional Court should enjoy the power to offer a final interpretation of the Constitution and to review the constitutionality of acts, which is the very essence of judicial review as an institutional design to review the constitutionality of laws, rules, and administrative actions.

Through judicial review, the unity and legitimacy of the legal system can be upheld. It can also strengthen judicial power, invigorate both the Constitution and citizens’ actions to seek remedy by the law, and establish the authority of the law.

Judicial review also has an important role in rendering the whole legal system predictable and calculable, making the logical relations between laws and regulations rigorous and clear, and enabling legal reasoning to become a coherent whole, on the basis of which the balancing of various interests will become more persuasive. Without judicial review, violations of the law or of the Constitution at the micro-level will be difficult to detect for remedy, hence leaving the internal contradictions in the legal system unresolved, which will give rise to chaos. Without judicial review, judicial power will find it difficult to have a real say in society, not to mention judicial independence, or the establishment of a rule of law government or the authority of the Constitution.

On the other hand, if judicial organs can offer an appropriate balancing of and remedy to legislative and executive powers in accordance with the Constitution and the law, then adjudication will become a channel for underprivileged groups, minorities, and even individuals to drive forward social advancement and institutional changes. For this very reason, judicial review is of particular importance to legal and political reform in China.

From the perspective of existing institutions, in order to implement the provision on the sovereignty of the Constitution in Section 2, Article 5 of the Constitution, and that on monitoring the implementation of the Constitution in Section 2, Article 62, and Section 1, Article 67, in 2000, Articles 90 and 91 in the Legislation Law provide a detailed procedure for the NPC Standing Committee (NPCSC) to review and decide the constitutionality of administrative regulations and local laws.Footnote ²⁰ According to these two provisions, the State Council, the PRC Central Military Commission, the Supreme Court, the Supreme Procuratorate, and the standing committees of people’s congresses at the provincial level—all these bodies have the power to suggest a constitutional review by the NPCSC of laws and regulations of concern.

The Legislative Affairs Committee as a subsidiary body to the NPCSC should transmit these suggestions to relevant special committees for review. Apart from this, state agencies, civil associations, enterprises, or even individuals are entitled to submit review proposals, to be handled by the Legislative Affairs Committee, which upon receiving such proposals, can pass them on to special committees for review if necessary.

The special committees, upon verifying whether the act under review contradicts the Constitution and the law, should submit review decisions in writing to the law-making bodies, requesting the latter to respond within two months on whether to change the relevant law/regulation. If the law-making body fails to change the law/regulation without persuasive reasons to convince the special committee, then the chairperson of the council can decide whether it will be submitted for final review by the NPCSC.

It has to be admitted that there is still a large gap between the procedures for reviewing administrative regulations and local laws as provided by the Legislation Law and the prototype of modern constitutional review, with their three main differences manifested as follows. First of all, it needs to be pointed out that although it has acknowledged individuals’ rights to raise review proposals, enabling the constitutional review of administrative regulations and local laws to acquire a sense of judicialization (sifahua ), it nevertheless still belongs to the scope of self-review by the law-making bodies, which does not allow the courts at all levels to render constitutional judgments. Even the Supreme Court only has the right to request a review. Whether to accept such a request is completely dependent upon the judgements of the NPCSC and the law-making bodies.

As for the constitutional review of laws, it is entirely a matter internal to the state law-making bodies, concerning which the Supreme Court does not even have the right to suggest a review. As a matter of fact, the constitutionality of laws (including the fundamental law and laws in general) has already been excluded from the scope of constitutional review as provided by the Legislation Law.

Second, it is noticeable that the special committees within the NPC, upon review, do not make a decision on the unconstitutionality of certain laws/regulations should it be found that the latter contradict the Constitution. Instead, they only have the right to issue written notices to urge the body that made the law to change it. If it is changed, then the issue of unconstitutionality is solved. In other words, to a large extent what is avoided is the possibility of rendering a crystal clear judgment upon such issues as the constitutionality of laws/regulations and the attribution of liability.

For this very reason, the separation of powers and checks and balances are completely ruled out. Even a so-called oversight mechanism to check the constitutionality of those organs with supreme power will be easily dissolved by the guanxi atmosphere of favour trading prevalent in the bureaucracy.

Third, and more importantly, only when the law-making body refuses to change the law will it be possible for the NPCSC to officially declare its presence for review and rendering a judgment or decision on the former’s constitutionality. Arguably, this is the place where the constitutional review in the real sense starts in China. Nevertheless, without due changes in the existing power structure, the probability of such an occurrence is only one chance in a million.

Even if there occur such rare events as of the State Council hosting a “Hard-headed Leader” or local government officials defying central authority, as a matter of fact, this is no more than a matter of “contention” (doufa ) between different power apparatuses that varies with the balance of their forces under exceptional circumstances, with the result more often than not in favour of the law of higher order and effect replacing administrative laws and regulations.

The legal reasoning central to the coherence of the legal system thereby does not possess any decisive significance. This also means that constitutional review and judgment in China have in essence been following the internal logic of the legislative power, which is not based on an interpretation of the Constitution.

In spite of all this, we still should not underestimate the epochal significance of the constitutional review procedure as provided by the Legislation Law. In particular, with the actionable leverage as provided by Section 2, Article 90, enterprises, private organizations, civil associations, and individuals may exercise their right to review suggestions repeatedly, so as to pave the way in a piecemeal manner for constitutionalism and constitutional review.

Apart from this, the judicial explanation (No. [2001]25 of Judicial Explanation)Footnote ²¹ as regards the legal source for the fundamental right of access to education, which took effect on 13 August 2001, also provides more actionable leverage, enabling the court to quote stipulations in the Constitution as their ratio decidendi, to accept human rights litigation within a certain scope,Footnote ²² and further to conduct a constitutional review of the application of laws/regulations and the actions of power-holders during its adjudication of concrete cases (especially administrative lawsuits).

In fact, under the call of “the judicialisation of the Constitution” (xianfa sifahua ), there have already emerged several cases of human rights litigation in its real sense, even moving towards constitutional litigation. For instance, Jiang Tao v. Chengdu Branch of People’s Bank of China, as the “No.1 Case in China of Suing for Equal Rights,” during which the former brought an administrative lawsuit against the bank for discrimination in terms of personal height during recruitment, was accepted and tried on 25 April 2002.Footnote ²³

Lawsuits against the abstract acts by local governments concerning private property rights, which have been a historical issue, can in all probability change into constitutional litigation at any time.Footnote ²⁴

From the existing legal phenomena, litigations, and public opinions on constitutional review in China, it can be seen that in terms of mechanisms to uphold the Constitution, apart from the right to resistance, the Emergency Law scenario, and such special procedures of modifying the Constitution, there have gradually emerged two basic modes of individual conduct in initiating the procedure for constitutional review, one being the call or petition for constitutional review as a matter of public order,Footnote ²⁵ mainly to petition the law-making bodies through existing legal channels, so as to uphold the effectiveness of the constitutional order and the integrity of the legal system.

The other way is a private rights modelFootnote ²⁶ of suing for constitutional review, as can be seen in such cases as suing for equal rights, and access to education in China,Footnote ²⁷ mainly for the purpose of achieving concrete fairness and justice in such matters as protecting human rights, basic civil rights, and an appropriate adjustment of private rights. So far, precedents of such “quasi-constitutional lawsuits” have already emerged and been handled by the four levels of courts in China, from grassroots ones to the Supreme Court. Moreover, class action in accordance with civil procedure also contains the potential to change or create legal norms and policies in accordance with human rights mandates.Footnote ²⁸

This means that China has already had certain holistic trial-and-error experience in initiating the procedure for constitutional review by different power organs at various levels. Among the citizens there has already emerged a self-consciousness and strong demand for protecting human rights and basic rights. The conditions for establishing a judicial constitutional committee or a Constitutional Court are not only existent, but also completely ripe (even arguably over-mature).

What, then, are the elements that hamper such an institutionalization that answers the needs of the Zeitgeist? Apart from governmental rationale and resolve, there are also certain objective difficulties that need to be included in our examination. First of all, what needs to be pointed out is a profound predicament, namely that whether the basic idea of modern constitutional review can be achieved or not depends upon the competence of citizens to bring constitutional lawsuits. Nevertheless, if individuals are entitled to freely initiate related procedures, this might contribute to a soaring increase in cases filed to the constitutional committee or the Constitutional Court, resulting in the latter being overloaded by an abuse of litigation rights.

In China, there has already existed a plethora of cases concerning massive litigation on the right to education, the number of cases of petitioning for retrial on effective judgments in accordance with the procedure for adjudicatory supervision remaining high, and the swarm of letters and visits, from which it can be seen that constitutional review may lead to adding more work to the overloaded court system. However, these problems are not unsolvable.

Apart from reducing defects and dissatisfaction via political reform and changes in the legal system, an adjustment in the concrete institutional arrangements (e.g. a clear provision of the strict requirements for accepting constitutional litigation, and using the State Bureau for Letter and Calls as the apparatus to filter personal applications for constitutional review) can also soften the impact of facts on norms. To a certain extent, it is precisely due to the high pressures of dissatisfaction in society that there is a need to resort to the procedure to review and remedy unconstitutionality, so as to provide an outlet for pent-up energies, especially to transform exploding pressures into a force to propel institutional innovation via responding to public opinion.

There is also the issue of how to co-ordinate the relations between the organs of power. For one thing, in traditional politics, the fundamental principle was to hold officials to strict liability when there existed no clear definition of the boundaries of power, for which a review of unconstitutionality may encounter the following two predicaments.

First, shall we also hold unconstitutional acts and laws/regulations to strict liability? If the answer is negative, then the organic principle of the power structure in China will need to completely revamped—otherwise the liability mechanism will find it difficult to continue in other aspects. For instance, people will ask: “Now that such a fundamental offence as unconstitutionality can be pardoned, then why should we become picky on ordinary acts of violating the law?” If the answer is positive, then we need to define who should be held liable, with the first issue to define the boundaries of power and jurisdiction clearly.

Second, the constitutional review is based on the separation of power and checks and balances, mainly to build a rule-of-law order in accordance with an adversarial logic different from the “philosophy of struggle” (e.g. the adversarial system in adjudication, and leadership competition in politics). However, China’s political traditions emphasize the co-ordination between different powers without a clear boundary of power jurisdictions, and is thus susceptible to slipping into informal review and modification as provided by the Legislation Law, or even some internal collusion to constrain the operation of the human rights protection mechanism by the power-guanxi networks of bureaucrats protecting each other. This also testifies to our belief that the “co-ordination of three powers” (sanquan xietiao ), as has been expected, should not be based on sacrificing human rights, let alone a reason for obstructing the establishment of a constitutional review system.

Furthermore, the defects of the current system, as well as the internal contradictions in the text of the Constitution, also plant profound doubts and fears in the minds of the authorities towards the results and chain reaction of constitutional review. Nevertheless, the key issue is whether this status quo is rational. Can it persist? If admittedly political reform is inevitable, then we can see that there is no better way to satisfy the needs of gradual reform than constitutional review and the interpretation of the Constitution.

For one thing, only through invigorating the existing Constitution will we be able to push forward political reform without large-scale social repercussions, and hence to achieve the majority of the goals of reforming the state power structure and system of authority. Turning away from this path is no different from “waiting for gains without pains”—waiting for social pressures to mount up to the critical point of affecting social stability. It even contains a certain sense of potential threat of radical revolution triggered by government inaction to violations of the law and condoning unconstitutionality.

The introduction of constitutional review in China should stick to the principle of judicial foundationalism (sifa benwei ). In other words, what is needed is a judicial review of unconstitutional laws/regulations and administrative acts. Nevertheless, existing statutes have placed constraints on the possibility of the institutional designs that we can choose for judicial review, which in my opinion should opt for centralization, namely to establish a Constitutional Court.

Considering the difficulty of achieving all things in one go, I once suggested that we can use the existing NPC as the model for a two-step strategy, namely to establish a Constitutional Committee answerable to the NPC, which will then evolve into the Constitutional Court.Footnote ²⁹ Moreover, I emphasized that, even during the first step, we should not leave everything to the Constitutional Committee; for instance, to offer interpretative suggestions for modifying unconstitutional laws, or proposing to the NPC a clear amendment of the written text of fundamental laws. On the contrary, it should be for the Constitutional Committee to reach a decision on the constitutionality of certain laws and regulations.

If the NPCSC decides that the review conclusion of a certain law or stipulation being constitutional is that it should not be submitted to the NPC for review, then this can take immediate effect. Otherwise, this should be submitted to the NPC for further review. Whatever the result, the Constitutional Committee should honour the judgment by the NPC, which fully agrees with the current institutional design. In order to facilitate the NPC in exercising its final judgement on constitutional review, it can be provided in writing that the Constitutional Committee’s review conclusion of the constitutionality of laws/regulations should be made prior to or during the NPC sessions in early March every year.

In order to uphold the authority of the Constitutional Committee, it should also be laid down that, should the NPC decide to overrule the conclusion of constitutional review, it should require approval by a majority vote of two-thirds or more, namely with the same condition of passing constitutional amendments via absolute majority voting. Furthermore, in order to prevent an explosive increase in constitutional litigation from paralysing the system of constitutional review, apart from the provision of very strict and detailed requirements for accepting a lawsuit, in the first stage we can recognize the right to lawsuits only by government agencies. As for the review procedures for protecting human rights and basic civil rights, this can be conducted by the State Bureau of Letters and Calls.Footnote ³⁰

Nevertheless, the problems that have ensued laggard political reform may compel us to speed up the process of institutional change, for which we may have to start setting up the Constitutional Court right now. The main advantage of setting a Constitutional Court outside the Supreme Court is to effectively divert the mounting pressures on this centralized power structure.

For ordinary courts, the main job for judges is to adjudicate cases in accordance with existing laws, as it is a fundamental requirement of institutional design to respect the legislative power. For this reason, the incentive for judges to offer a judicial review of constitutionality can easily be suppressed.

They equally lack sufficient specialized interest and power of discernment for constitutional issues. Where a busy occupation in the daily routines of adjudication is already time- and energy-consuming, judges will have no spare time to attend to constitutional dissention or lawsuits, for which they will opt for judicial passivism, thus rendering constitutional review no more than a dead letter. In addition, a centralized review of constitutional matters can improve the efficiency of adjudication, which would be advantageous to the protection of fundamental civil rights.

4.1 Local Rule of Law Competition on the Stage of the People’s Congresses

In current China, with a strong executive power and a weak judicial one, the only branch of government powerful enough to move political reform with accelerating effects is the legislative power, or to put it in more exact terms, rebuilding the central-local power relations in the system of the people’s congresses, and motivating local governments to compete for reforms through such judicialization measures as “budget review,” “accountability review,” and “judicial review.” In order to provide appropriate incentives, we can link new taxation reform (the redistribution of revenue sources) and decentralization with the rule of law progress on the part of local governments, allowing those qualified to enjoy a certain degree of power to levy taxes autonomously, together with other kinds of autonomous powers and self-government by local citizens. Here, the move of greatest significance is to baptize local government leaders through direct election, enabling vox pop to be directly reflected in local politics and reducing the cost of supervision by central government.

Where local people’s representatives and local government leaders are all directly elected, a mere separation of legislative from executive power, with local leaders’ decisions to be backed up directly by public opinion, will decrease the phenomenon of “dragging-on” (chepi ) due to the balancing of power, and improve the efficiency and legitimacy of local governments. For this very reason, local legislation should not be dominated by the government, in which stead all proposals and bills can only be submitted by the people’s representatives.

This situation can raise the decision-making power of local people’s congresses to new heights, and hence form the basis of an opportunity emerging to transform China’s political landscape in a bottom-up way.

The current circumstances are favourable to the advancement of local democracy. Upon an unprecedented change in “local government revenues generated via selling lands” that has lasted for two decades since an adjustment in the real-estate policy, the debt crisis on local governments is increasingly imminent.

The new government leadership should focus its attention on solving the issue of local governments’ debts, with a prowess similar to that in the 1990s to decisively clean up the “triangular debts” (sanjiaozhai ) and “chained debts” (lianhuanzhai ) inflicted upon SOEs. Arguably, to deal with local debts is the best entry point to drive forward local democracy.

The design of “budget review” and “accountability review” can help to clarify in its entirety the relations between administrative and fiscal powers for local governments and re-order the priority of public affairs in favour of citizens. They can also enhance budget constraints and carry out the policy of “slimmer government,” with an overhauling, foundational local administrative reform.

A strict review and accounting of fiscal budgets is another important means of curbing local corruption and helps in a natural way to connect temporary solutions (zhibiao ) with such permanent solutions (zhiben ) as institutionalizing information disclosure and government officials’ property declarations.

As a matter of fact, there is a strong causal relation between pervasive official corruption and an over-concentration of revenues in the hands of central government.

Upon enhancing local government and citizen autonomy, an interest-driven model of politics by “running to ministries for appropriation” (paobuqianjin ) will have its room significantly reduced, with an effective operation of citizen oversight mechanisms and a real curbing of structural corruption.

Since the 1980s, it has become a universal trend to devolve government power downwards and to strengthen the autonomy of civil society. Even France, a country famous for centralization and bureaucracy, also started power devolution to local entities from 1982 onwards.

The European Charter of Local Self-Government, which was passed on 27 July 1985 and took effect on 1 September 1988, was a milestone achievement for localization in northern and western Europe. Against this background, the International Union of Local Authorities (IULA) also adopted the Worldwide Declaration of Local Self-Government in September 1985 and re-promulgated it in June 1993 upon amendment. Since 1987, the UN Economic and Social Council started examining the draft of the Universal Charter of Local Self-Government.

These international instruments suggest that the principle of local autonomy of various types that has not received its fullest elaboration is an indispensable part of contemporary democracy, including the following points: (i) the statutory power enjoyed by local governments is in principle exclusive and unlimited; (ii) the autonomy of local citizens should also be emphasized, apart from the local government’s autonomy; (iii) there is a need to adopt a village, town, and municipal prioritism in terms of the distribution of public affairs administration; (iv) efforts should be made to ensure that local governments have enough revenues for exercising their powers, with subsidies to poverty-stricken areas via an adjustment by the central government; (v) there is a need to recognize local governments’ autonomy to levy taxes; (vi) local governments enjoy the right to establish communal organisms for public affairs; (vii) local governments should enjoy full power over matters unless explicitly indicated otherwise in statutes; and (viii) local governments enjoy the right to seek legal remedy so as to protect their autonomy.Footnote ³¹

The direction of political reform as indicated in these basic, non-federalist institutional designs for local autonomy could possess a certain level of significance for China to learn.

In the midst of local decentralization, to reflect upon the formation and development of a mechanism for local governments to compete for the rule of law requires us to first of all pay special attention to such innovative practices as the “rule of law index” (fazhi zhishu ) and the White Paper on the Rule of Law (fazhi baipishu ) in such places as Zhejiang, Jiangsu, and Shanghai. Local governments in these places, in their quest for good governance, have explored both theory and practice on the local rule of law. On the one hand, they consider local conditions and demands, which is shown in differences in such institutional arrangements as elections, legislation by local people’s congresses, the list of items for administrative approval, administrative review, administrative lawsuits, civil tort litigation, criminal procedure, “clean government” tactics, the legal profession, alternative dispute resolution, social security, environmental protection, and consumer protection.

“Rule of law government” is used to change local conditions and demands, thus acquiring a competitive advantage in domestic political arrangements, bringing to greater prominence the difference in local modes of economic and social development. From this it can be seen that, in all probability, the thesis of creating institutional dividends via political reform can be verified and validated by local competition for the rule of law.

Linking the performance of building a rule of law government with local autonomy and the policy of redistributing revenue sources can create more powerful incentives for bottom-up institutional innovation, enabling decentralization and integration to be combined organically, with a soft landing for political reform.

During this undertaking of local competition for the rule of law, scholars and lawyers can play an important role, while the contribution from citizens’ suing for rights protection and public opinion (especially netizens’ opinion) cannot be ignored either.

4.2 Individuals’ Rightful Litigation in Accordance with the Law

China is a country where the people are masters (renmin dangjia zuozhu ), with the people as the sovereign. Nevertheless, how the people claim their rights and how individual citizens enjoy their rights as “masters” is quite unclear. In general, the means concretely available to individuals is nothing other than the right to litigation. Therefore, a rational system of the right to litigation is the core of a modern rule-of-law order. For the majority of ordinary citizens, the law is as much abstract and obtuse as remote, while their feelings about the law are only via concrete cases.

An evaluation of the legal system or order is more often than not based on their feelings of particular judgments. Such intuitive understandings as those of the fairness of adjudication and whether the judgments accord with their understanding or sense of justice will be decisive in their rational knowledge of the legal system. For this very reason, lawsuits normally have relatively high social attention pegged to them, becoming hot spots of public opinion.

In China’s legal traditions there are elements of aversion to litigation and an anti-litigation mentality, in contrast to which in a modern Rechtsstaat the positive value of litigation has been duly recognized. For instance, Jhering, a German legal scholar, put forward the proposition of “the struggle for rights,” with the intention of encouraging rightful litigation and an emphasis upon such litigation being not only the right but also the duty of modern citizens.Footnote ³²

To regard rightful litigation as a citizen’s duty is a perspective of public order and good custom with far-reaching implications. Litigation not only serves the purpose of protecting the individual’s own rights, but also of maintaining legal order and social justice. For this very reason, every act of violation should be brought to court—to justice—otherwise the citizen’s duty is unfulfilled. Such a perspective is compatible with the statement that “a man indifferent to principles will corrupt morality” (xiangyuan de zhi zei ye ).

This reveals the public-interest implication of individual litigation, not to mention those lawsuits brought on behalf of the public interest, and suggests that individuals can and should play a positive role in the implementation of the law.

No litigation, no operation of the legal system. Obviously, it is of positive significance to strengthen the citizen’s individual rightful claims through litigation. Although legal intensiveness is not what we wish to encourage, in the face of a powerful interest group and a situation of almost restricted social mobility, to suppress rightful litigation implies shutting underprivileged groups outside, which would not be a wise gesture.

On the contrary, there should be outlets for ordinary citizens to bring up rightful litigation, with facilities made available. For instance, efforts should be made to arrange all elements in a more rational manner in the current institutional arrangement for rightful litigation, including the provision of sufficient legal information, the reduction of the social costs of litigation, and the clarification of predictable benefit and loss of legal actions.

For this very reason, when we examine the extent of the rule of law in a society, attention should be paid to the facility available to citizens for litigation and the availability of lawyers for providing citizens with professional services and counsel for rightful litigation.

4.3 The Defence Activities of the “Technical Nitty-Gritty” Lawyer (jishu sikepai )

Section 1, Article 2 in the Law of Lawyers, amended 28 October 2007, offers an important redefinition of “lawyer,” who is now defined as “a professional to provide legal service to his client.”

This definition has changed from “a state legal worker” (the Provisional Lawyers Act 1980), and “a professional to provide legal services to society” (the Law of Lawyers 1996), thus gradually manifesting the different aspects of this profession. As a matter of fact, it will be difficult to fix our attention on any of the attributes thus defined, which will also be parochial.

For this very reason, we need to advocate a multidimensional understanding. Section 2, Article 2 of the current Law of Lawyers follows up by identifying three roles to be played by lawyers, namely to protect the lawful rights of clients (as client representative), to protect social justice (as the carrier of public interest), and to protect the proper implementation of law (a judicial role, comparable to the duty as an officer of the legal system as defined by American Bar Association).

Apparently the focus for lawyers has shifted to their relationship with their clients, which gives a bit of a sense of client prioritism (kehubenwei ). Although this is no more than a rhetorical modification, it nevertheless exerts a far-reaching impact upon the legal profession.

Indeed, to enhance the relation between a lawyer and his client depends upon certain conditions, of which the most important may be a technical rationalization of the judiciary, an increase in the adversarial element, and the establishment of procedural justice.

To the extent that a lawyer is defined as representing his client, this almost amounts to admitting the alliance formed between the two in both offensive and defensive functionalities, so as to prevent the power holders or the privileged from violating civil liberty and lawful rights. The lawyer may not need to practise client prioritism in an absolute sense, as prescribed by Sir Henry Brougham, who suggested that a lawyer on duty knows no one but his client, with the resolution in favour of his client as his foremost and sole duty to be secured by all means, at all costs, and against all odds.

This profession is doubtless characterized by the lawyer’s loyalty to his client—he should be the trustworthy “defender of rights” on behalf of his client, especially in cases of criminal defence, with some courage to secure his client’s rights at all costs.

On the one hand, we are quite aware of two apparent potential dangers in an improved unity between a lawyer and his client. On the other hand, a completely unguarded client, which will offer both a moment of power (as arising out of the judicial role) and profitability (as a competing professional in the market for legal services with an eye for profit) to the lawyer, who, if malicious, will find it easy to milk his client for his own benefit.

In other words, a lawyer has an equal opportunity to protect or harm his client, especially when these two aspects seem to be in competition, which may in all probability entail real danger.

A lawyer may collude with his client to toy with the law for private gain, at the cost of state order or social public interest and in a manner against his professional ethics. Both dangers can lead to the same consequence, in that the halo of “sacred profession” will disappear, with a certain number of lawyers degenerating into a group of profiteering merchants or snobbish political brokers.

In order to prevent this, it will be necessary to enhance not only the degree of free and fair competition in the market for legal services, with an effort to remove the barriers of social status and guanxi, but also the cultivation of professional ethics, a disciplinary code of conduct, the nurturing of an elevated character, and an advocacy of self-discipline and public interest.

For lawyers, the essence of professional ethics lies in the achievement and advancement of public interest and social justice through providing a service to the client. A lawyer on duty, apart from his “partisan” loyalty to his client, should also be answerable to his professional peers, the court, the procuratorate, and the whole of society, with candour, straightforwardness, sincerity, and perseverance in both his conduct and his business.

As far as profit and compensation are concerned, the principle of sincerity should be adhered to, with no intention to conceal the truth or fabricate the untruth, nor to seek private gain for any client by illegal means. In general, that “a man with noble characteristics makes money in a honourable way” should be the fundamental and most moral requirement for lawyers.

In addition, Article 42 of the Law of Lawyers also provides for a duty of legal aid, urging lawyers to actively participate in legal aid and other activities that serve the public interest outside their legal profession. In other words, that “a gentleman performs his public commitment regardless of gain or loss” constitutes another important aspect of the lawyer’s morality, corresponding to the lawyer’s role as a judicial officer and carrier of the public interest.

What needs to be emphasized here is the importance of skilful, well-trained lawyers to help individuals with their lawsuits. Specialization and professionalization, together with the security of services to protect rights, are proportionate to the size of the lawyers’ population. The higher the social status and the greater the role a lawyer enjoys and plays, the greater the likelihood that he will perform his tasks well and put the law in places where it is needed most.

More importantly, the greater the degree of seriousness with which a lawyer treats procedure, evidence, and applicable rules, together with a critical spirit, can help to reduce the possibility of a miscarriage of justice, on the basis of which the verdicts and the courts can enjoy higher authority.

Arguably, a lawyer who pays persistent attention to the legal technical nitty-gritty constitutes another important operational leverage for putting into place the rule of law. The so-called “nitty-gritty style” (sike ) refers to meticulous attention to detail, without which it will be impossible for a lawyer to protect his client’s lawful rights, for the law to be implemented, and for us to avoid a miscarriage of justice and to improve the quality of justice.

Nevertheless, what we have seen since 2012 seems to develop in a direction contrary to the above observation. The “nitty-gritty” lawyers were suppressed, with increased tensions between lawyers and the government agencies of the court, the procuratorate, and the police—arguably the judicial circle has now split into two groups. As a result, lawyers have united for mutual support and group struggle.

From such cases as Li Zhuang and Pingdu , it can be clearly seen that the self-identification of lawyers has become increasingly confrontational. For instance, in a Guiyang case in 2010, the complicated power relations among the local court, procuratorate, and police, coupled with the lack of a rational resolution mechanism, finally led to an emergence of an unprecedented defence team of 88 lawyers. Also, the case of lawyer perjury in Beihai, Guangxi, attracted the support of 20 lawyers from all over China who banded together.

In a recent case in Pingdu, Shandong, an advisory group of 25 lawyers and an observation group of over 40 “nitty-gritty” lawyers came from all over China to the anti-demolition location, which attracted serious attention in the public media with a magnified social impact. Such events were unprecedented.

This case may become an epochal one in judicial history, as well as having symbolic significance in politics, which means a substantial change in China’s judicial landscape.

4.4 Journalism Oversight in the Alternative Media

The coming of an age of alternative media has led to unprecedented transformations in our communication environment. Traditionally, the public media is a specialized hierarchy, while the alternative media contains a horizontal structure with mass participation, through which each and every one can freely make, distribute, and receive information. With the devolution of discursive power, the egocentric tendency becomes all the more prominent.

Horizontal interaction of this kind will result in a chain reaction in society, against which background public vigilance of the judiciary becomes ubiquitous, with a series of changes. During these evolving relations between the judiciary and public opinion, first of all a good intention can be identified.

As China’s judiciary is far from complete, with a relatively low social prestige, there has been an attempt to ensure judicial fairness via the oversight of adjudication by public opinion.

With an enhanced awareness of civil rights and the law, an increasing amount of social attention has been paid to litigation, while the alternative media has provided a means to facilitate citizens’ observation of, participation in, and oversight of the judiciary.

As a result, online public opinion on the judiciary has become increasingly vigorous, and can be seen as a virtual court or a shadow court.

This judicial public opinion entails two consequences: on the one hand, the judge on duty and the whole judiciary are put under the spotlight, subject to public, critical scrutiny. Where legal issues become social hot spots, judicial power seemingly shifts to the centre from the periphery. On the other hand, every move by the court is under public attention, which may lead to public opinion swaying or even deciding the final judgment—a phenomenon that needs to be prevented and remedied.

For one thing, public opinion, once becoming powerful or the norm, may shake the foundations of adjudication in strict accordance with the law and the principle of judicial independence. In this field of public opinion, individuals have been emancipated from the heavy burdens of traditional social structure, formal state mechanisms, and positive legal norms. They may band or re-band freely, while, at the same time, it may be easy for them to be seduced and manipulated through certain power strategies.

There exist no such “ideal discourse conditions” as emphasized by Habermas, where information is asymmetrical, the facts opaque, and the conclusion uncontested. As Walter Lippmann, a renowned opinion leader in the US, pointed out sharply: “For the practice of appealing to the public on all sorts of intricate matters means almost always a desire to escape criticism from those who know by enlisting a large majority which has had no chance to know.”Footnote ³³