The PRC constitutional structure

After China's accession to World Trade Organization (WTO) and the signing of the Closer Economic Partnership agreements (CEPA) with HKSAR and Macau, this would increase foreign investors' confidence in investing in the mainland.

To safeguard the State's political and social stability, China should also strengthen the socialist legal system construction, to ensure that there must be laws to go by, the laws must be observed and strictly enforced, and lawbreakers must be governed by law, and to comply with the requirement of the new situation arising from the development of the socialist economy, the comprehensive progress of the society and the entry into WTO. The PRC constitutional structure prescribes that the administrative power of China is held by the State Council (i. e. the Central Peoples' Government) and local peoples' governments.

The legislative power of China is exercised by the National Peoples' Congress and local peoples' Congresses. The judicial power is exercised independently by the Supreme Peoples' Courts and other local peoples' courts at various levels. The power of legal supervision is vested in the Supreme Peoples' Procuratorate and other local peoples' procuratorates at various levels. The "Rule of Law" refers to some of the fundamental principles of law that govern the way in which power is exercised in different jurisdictions in democratic nations. The Rule of Law has several different meanings and corollaries.

Its principal meaning is that the power of the Government shall be derived from law as expressed in legislation and the judicial decisions made by independent courts. Evaluate critically whether the PRC constitutional structure can ensure the operation of principles of "rule of law" and effective enforcement of law in current PRC. Before we can evaluate whether the PRC constitutional structure can ensure the operation of principles of "rule of law" and effective enforcement of law in current PRC, we should have the clear picture of the current structure of legal system.

In order to manage more effectively, PRC is divided into six levels of government structure; they are the Central, Province, Municipal, Country, Village and Town. The administration power is then held by the Central Peoples' Government and local peoples' governments at varies levels. 1 The National People's Congress (NPC), is the highest state organ in the country having the exclusive state power such as legislation, establishing and organizing other state organs at the central level, appointing important leaders of the country, supervising the work of other state organs.

The local peoples' Congresses at varies levels also has certain legislative power. Below the Congress, there are three branches – State Council, Supreme People's Court and Supreme People's Procuratorate. The State Council (the central government) is the highest state administrative organ. Within the State Council, there are ministries, commissions and bureaux responsible for the administration of particular fields or state affairs.  

According to the Constitution of PRC, the State Council has the legislative power to make administrative regulations; its ministries, commissions and bureaux have the power to issue administrative rules. All the laws and administrative regulations are mandatory for the people's courts to follow, but the administrative rules may be subject to examination by the courts in the administrative litigation process. For the judicial power, it is exercised independently by the Supreme Peoples' Courts and other local peoples' courts at various levels.

China's judicial system is quite different from that of most Western democratic countries. It is made of the people's courts, people's procuratorates, public security, state security and administration of justice. The Supreme People's Court is responsible for exercising the state power of adjudication and the Supreme People's Procuratorate for exercising the legal supervision power. They also have the power to issue judicial interpretations relating to legal rules in the course of their adjudication or legal supervision work.

The power of legal supervision is vested in the Supreme Peoples' Procuratorate and other local peoples' procuratorates at various levels. 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. Under Article 129 of PRC Constitution, China's people procuratorates are "state organs for legal supervision".

Besides, Article 5 of the Organic Law states the functions and powers of the people's procuratorates at all levels are mainly that they have to exercise supervision over the judicial activities of people's courts to ensure they conform to the law; exercise judgments and orders in criminal cases and over the activities of prisons, detention houses, to exercise supervision over the investigatory activities of public security organs to determines whether their activities conform to the law, review cases investigated by public security organs and determine whether to approve arrest, and to prosecute or to exempt from prosecution.

For the Constitution, it is regarded as the paramount law in the country; it nevertheless cannot be quoted in judicial verdicts and administrative decisions as a direct legal ground for solving concrete disputes and problem. Law (falu) refers to all legal documents promulgated by the NPC and its Standing Committee belong to the category of law which includes laws, decisions and ratified international treaties.

Law could be further divided into two sub-categories, one is basic law which are enacted by the general meetings of the NPC and have a general impact throughout the nation; the rest are non-basic laws which are enacted by the Standing Committee of the NPC and have a wide impact in certain areas only. Then, we should know the meaning of "Rule of Law". According to Franz Michael, "rule of law" is the very foundation of human rights.

In the Western legal tradition, law is applied equally to all; it is binding on the lawgiver and is meant to prevent arbitrary action by the ruler. Law guarantees a realm of freedom for the members of a political community that is essential to the protection of life and human dignity against tyrannical oppression and to the regulation of human relations within the community. 3 For China, rule of law has become a major aim of Chinese political and legal development since reforms began in the late 1970s.

The "rule of law" is clearly expressed in the sixteen-word phrase proposed by the Third Plenum of the Eleventh Party Congress in 1978, that is, you fa ke yi, you fa bi yi, zhi fa bi yan, wei fa bi jiu (there must be laws for people to follow, these laws must be observed, their enforcement must be strict, and law-breakers must be dealt with). From the legal system stated above, it seems that the legislation, judicial and legal supervision power are separated under the governing of PRC. However, can the PRC constitutional structure ensure the operation of principles of "rule of law" and effective enforcement of law in current PRC?