In the current PRC, they seem applying the "Rule by Law" rather than the "Rule of Law". "Rule by Law" in Chinese is fazhi (legal system), not only means the establishment of a legal system, it implies more importantly the ruling of a country in accordance with a legal system, i. e. , "the rule by law" (yi fa zhi guo). In other words, a country would be governed not by leaders' personal authority, but by institutional authority. In western countries, rule of law means every social member is governed by law, that both rulers and the ruled are governed by law, i. e. that everyone is equal before the law.
As stated above, according to PRC Constitution Article 131: People's procuratorates is the state organ for legal supervision and shall exercise procuratorial power independently and are not subject to interference by administrative organs, public organizations or individuals. The following cases showed the Public Security abused of its power to apply punishment on people and the People's procuratorates is not able to involve itself in supervising the affairs of the local government.
Recently, the politician of the Democratic Party, Mr.Ho Wai To, had been arrested for having sexual relationship with a prostitute in PRC on 12 August 2004 (see attachment 1). He was arrested by Public Security and "Detention for Education" for six month as punishment (see attachment 2).
Mr. Ho's case was not passed to court for judge for guilty and the Public Security already applied punishment for him. According to the Lawyer Mr. Liu in Canton, he said that the punishment was always not based on the case, but on the people form the Public Security. They can apply any of the six punishments without putting the case to court to judge (see attachment 3).
Some of the lawyers from mainland said that the punishment for Mr. Ho was quite heavy for his case as "Detention for Education" should only apply for committing the same misconduct more than one time or having sexual disease. One of the lawyers said that it is easy for the Public Security to overdose of their power and apply different punishment for similar cases (see attachment 4). This can be proved from the similar case occurred in the same month, one policeman from Hong Kong had been arrested for having sexual relationship with a prostitute (see attachment 5). However, his punishment is different from Mr.
Ho Wai To, he was just applied the punishment of "Detention for Fifteen Days". Similar cases with different punishment showed that the legal system in China had the problem of "Rule of Men". Besides, according to the internal document from the Public Security, foreigners, people from Hong Kong and Macau are not allowed to apply the punishment of "Detention for Education" or "Detention for Investigation" (see attachment 4). Therefore, the lawyer Mr. Wong Kong Tin said that the punishment applied on Ho Wai To can reflect the overdose of power for the Public Security.
The maximum detention period for those who have sexual relationship with prostitute is fifteen days only, but Ho Wai To was punished for six months' Detention for Education. Someone claimed that the different punishment applied to Ho maybe based on his background of being the politician for Democratic Party in Hong Kong. Besides, from the internet, it is not difficult to find the news related to the corruption of courts, government officials and the Public Security in PRC (see attachment 6 & 7).
The general public were not protected by law and they expressed their unsatisfactory of the government by committing suicide (attachment 6) and the corruption problem is very serious throughout the ruling people (from the attachment 7, the senior officials gave pressure for the one who investigate for corruption cases and was frightened to be killed) that hinder the development of "Rule of Law" in PRC. From the above cases, the principles of "rule of law" seems not operate properly, the "rule of men" applied instead, that is, different punishment are applied to different people under the same situation.
I think that the current PRC constitutional structure cannot ensure the operation of principles of "rule of law" and the effective enforcement of law in current PRC because of the cultural and political obstacles to the adoption of a system. Culturally, the rule of law seems so remote from the Chinese tradition; that is, the Confucianism and the Communism. According to Confucius: If you try to lead the people by regulation and order them by punishment, the people will evade these and have no sense of shame (in doing so). If you lead them by virtue and order them through the rites, they will have a sense of shame and will correct themselves.
The traditional Chinese are educated to conform to their seniors, create a peaceful atmosphere without causing troubles and the party's instruction. Therefore, they are not concerning much of the law, but the effect of the ruling party. They are not dare to fight against the ruled official although with unsatisfactory and they already adopted the corruption as culture. According to a TV program in Jade on 15 August 2004, the poor farmers have no power to fight against the official for unfair treatment by corruption and they just want to earn money to get their own wants by another corruption.
This can reflect corruption is common among the institutions and the public. Besides, the rule of law is vary from the communist tradition in China. "Law and the state are nothing but the coercive expression of economic power enjoyed by the ruling class. In the Chinese socialist state, as long as classes exist, law could only reflect the will of the Communist Party, the vanguard class. In this regard, law is taken as "a tool of state administration". 6 The Chinese Communist Party is the state's leading political party, and it exercises control over the National People's Congress (NPC) in many ways.
Is activities reach beyond the realm of the state system, and its authority is therefore greater than that of the NPC. 7 With one-party dominates; party interest is greater than the interest of the legal system. According to what Deng Xiaoping said: "Very often what leaders say is taken as law and anyone who disagrees is called a lawbreaker. "8 In the past (during Mao's area), Party Policy was more important than law and law was viewed as an instrument to realize Party Policy. In other words, the Party must stay above law. 9 Although Deng Xiaoping rejected the concept of "Rule of Men", but this concept still exist.
However, with China's joining of the organization, the demand for legal transparency and equal treatment will be the result of economic development under the joining of the organization. As for legal transparency, any member country failing to provide a transparent judicial system or adequate legal and administrative support to foreign corporations will be liable for breaching the regulations of the WTO. Facing the pressure from the US or western European countries, China has to amend its laws to ensure the compliance of the requirements of the WTO.
With the move to join the WTO, China must take into account the standards and responses of the international community when it comes to the interpretation of laws. 10 Although PRC is moving rapidly towards the adoption of "Rule of Law", there is still a long way to fully develop the idea of "Rule of Law" among the PRC public and government officials.
1. Kui Hua Wang, Chinese Commercial Law, 1st Edition, Oxford University Press 2. Zhu Guobin, City University of Hong Kong 3. Franz Michael, "Law: A tool of Power", op. cit http://www.usc.cuhk.edu.hk