[Eyes of the Wise] The Consultative Mechanism in China's Social Transformation

This speech was presented at the seventh symposium: Human Rights in China on May 16, 2008. The original speech was made in Chinese.

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It is my great pleasure to attend this conference at the invitation of the Tokyo Foundation.
China and Japan are close neighbors separated only by a strip of water, and the people of the two countries have been in frequent contact with each other since time immemorial. China drew valuable lessons from many other countries including Japan in its modernization drive. For example, it learned a lot from the legal system and theories of modern Japan when revising its laws in the late Qing Dynasty. In recent years, China's field of administrative law and its administrative departments have taken great interest in Japan's administrative guidance system. Works of many famous Japanese scholars in public law, such as Tatsukichi Minobe, have been translated into Chinese and exerted great influence in China. The institutional economics of Professor Masahiko Aoki is also widely respected in China.

In keeping with the theme of this conference and on the basis of latest research results, I would now like to give my personal views on the consultative mechanism in China's social transformation, and I would appreciate your comments on them.

Since China introduced the reform and opening up policy in 1978, it has undergone historic changes, and made economic, political, social and cultural achievements that have attracted worldwide attention. The past three decades also witnessed historic changes in the relationship between China and the rest of the world. The Chinese economy has become an important part of the global economy, and China's development has strongly promoted world economic and trade growth. China has diligently fulfilled its share of international responsibilities and become an important member of the international community. In today's world, progress toward multipolarization is irreversible, economic globalization is deepening, and the pace of scientific and technological innovation is quickening. China's future is increasingly closely tied to that of the world.

As China is developing against the international background of economic globalization and the domestic background of social transformation, it has serious problems. To resolve these problems and conflicts and achieve sound and rapid economic development, China needs to develop its legal system to strengthen regulation of public power and safeguard of citizens' rights. To this end, it is necessary to further reflect on the relationship between those who wield public power and private citizens in order to get the public governance model to use hard and soft law in combination.

A Theoretical Description of China's Consultative Mechanism

China's social transformation means transformation from a planned economy to a market economy, from a single-sector system of public ownership to a system under which public ownership plays the dominant role and diverse forms of ownership coexist, from the rule of man to the rule of law, and from absolute, managerial government to limited, service-oriented government, from being closed or semi-closed to completely opening up, and from a highly centralized structure of state and society to a dual structure. I should say that the objectives and direction of China's reform and development are quite clear. Speaking of the concrete process of reform, however, China adopts a trial-and-error approach in light of its actual conditions. In other words, it tries to cross the river by feeling the stones underfoot. Therefore, China doesn't try to achieve social transformation overnight; rather, it makes gradual progress. It gradually carries out social transformation on the common recognition of the importance of reform by constantly undertaking reforms and trials in, for example, many model zones for economic reform, constantly satisfying the interests of the vast majority of the people, and achieving a consensus at each development stage. A consultative mechanism with Chinese characteristics and a mixed governance model that combines soft with hard law have been created under the guidance of the principle of integrating the leadership of the Communist Party of China (CPC), the people's position as the masters of the country and the rule of law.

1. The three types of public governance models
From the perspective of public law, China's social transformation is overall a transformation from state administration to public administration and then to public governance. Generally speaking, public governance can be divided into three types: the hard law model, soft law model and a mixed model that combines soft with hard law. It is our understanding that both hard and soft law are basic forms modern law takes and that the fundamental difference between them is whether their enforcement is backed by state power. So-called soft law is not legally binding but can produce practical effects. Soft and hard law complement and replace each other and are interactive. Looking at development trends worldwide, many countries consciously or subconsciously stress that their governance models should integrate soft with hard law, constantly correct narrow traditional ideas on laws, make up for the weaknesses of relying solely on the hard law model and develop in the direction of using soft and hard law in combination. But China's approach to a mixed model of governance is somewhat different from other countries. China has developed in accordance with its public policies at a time when its regulatory system of hard law is not yet complete. A large number of public policies have been instituted through consultation in the process of China's social transformation. They are an important form of the soft law, and are usually experimental and often come into being before the hard law. Comparing these public policies and the hard law, the former is more flexible yet less stable and regulatory. As its objectives of social transformation at different stages become clearer and its socialist legal system advances, China has gradually set up a regulatory socialist legal system that is in line with the market economy, law-based government and civil society and created a mixed governance model with Chinese characteristics that combines soft with hard law. This type of public governance model resulting from the country's social transformation transcends traditional ideas on management, emphasizes common governance and cooperation, uses many non-mandatory means, and produces good practical results.

2. Three mechanisms for public governance
The social transformation in China and the mixed governance model that has emerged in the process have profoundly changed the relationship between those who wield public power and private citizens. In China's traditional planned economy, there was a unidirectional "order-obedience" relationship between those who wield public power and private citizens in which the former gave orders for the latter to follow. During the process of reform, China gradually adopted a mixed governance model and gradually created a restraint mechanism, an incentive mechanism and a consultative mechanism. The organic integration of these mechanisms helps give full play to the strengths of all members of society, arouse their initiative, and safeguard and promote the stability, innovation and sustainable development of society as a whole. The basic elements in the governance relationship, composed of those who wield public power and private citizens, are both motile and expand instinctively. Sometimes their expansion is rational, and sometimes it is irrational. Therefore, it is imperative to keep both elements, especially public power, from expanding irrationally. At the same time, public governance in a transitional society is undergoing a dynamic process of development, so both those who wield public power and private citizens need to participate in the process and promote it. Those who wield public power should carry out all their functions and provide public services and private citizens need to actively participate in the process of public governance. During this process, the relationship between the two parties will gradually become more bidirectional and interactive; a structural balance will be reached in the distribution of public power between those who wield public power and the distribution of citizens' rights between private citizens; resources will be optimally allocated in society, giving consideration to both public and individual interests; the interests of society as a whole will be maximized; there will be social harmony; and development will be scientific.

3. Three characteristics of the consultative mechanism of China
The consultative mechanism of China has many characteristics, but we believe the three main ones are the equality of the parties, the openness of topics and the interactive nature of the process. Equality of the parties means that the parties engaged in consultation are equal before the law, which is a prerequisite for democratic consultation. The establishment and development of the market economy and the growth of civil society have promoted equality among parties engaged in consultation and provide the basis for consultation. Openness of topics means that the topics under discussion are open to revision and can even be replaced with other topics. These topics can be either major issues of concern to all of society or specific issues related to vital interests of some citizens. The interactive nature of the process means that during the communication and dialogue process, the parties engaged in consultation may change their perspectives at any time and that they seek agreement and mutual understanding through rational arguments and exchange of ideas rather than through coercive means. An interactive consultation process is one in which the concerned parties discuss, deliberate and even debate as equals. This process allows for the formation of the broadest possible consensus.

4. The three layers of the consultative mechanism
The consultative mechanism has three main layers resulting from the social transformation taking place in China, namely, the social community, the national community and the international community. Group members of the social community engage in consultation to achieve consensus through dialogue in the interest of their community. For example, industrial associations, villagers' committees, residents' committees and other self-ruled mass organizations and political social groups engage in consultation to formulate charters, village regulations and other normative documents that are binding on members of the concerned group. The country's various political entities engage in consultation to arrive at a consensus concerning issues such as the policies and principles for China's reform and opening to the outside world. In the international community, sovereign states engage in dialogue and negotiation as equals regarding global and regional issues of common concern to formulate generally recognized rules and standards and implement them. From the perspective of public law, each of the above-mentioned communities has two different types of relationship in terms of rights and obligations. One is that the rights and obligations are symmetrical or equal, and the other is that they are asymmetrical or unequal. The mixed rules of the soft and hard law can be used to regulate these two types of relationship, and the consultative mechanism can play a role too.

The Practical Use of the Consultative Mechanism in China's Social Transformation

The consultative mechanism has deep roots in traditional Chinese culture. Traditional Chinese culture, especially the Confucian concepts of compatibility, harmony and consultation, is deeply ingrained in people's thinking. Since adopting the reform and opening up policy, China has learned from the mistakes of the Cultural Revolution, absorbed the outstanding fruits of human civilization, and further fostered the national spirit and the spirit of the contemporary age in conformity with the country's conditions. With respect to foreign exchanges, China has carried forward the idea rooted in traditional Chinese culture of peaceful coexistence with all other countries, adhered to the principles of inclusiveness and openness, and strengthened international cultural exchanges and cooperation. As China undergoes social transformation, there are many areas in which it has utilized the consultative mechanism relatively successfully, made gratifying progress through its use, and stimulated its development.

1. The consultative system in political development
In the course of building democratic politics in China, consultation not only is a work mechanism, but has also become a political system. China began practical exploration of consultative democracy long ago. On the eve of the founding or the People's Republic in 1949, the first Chinese People's Political Consultative Conference (CPPCC) was held, to which representatives of all parties, localities and mass organizations, as well as a number of prominent individuals were invited. The CPPCC adopted the Common Program and established the Central People's Government. After the reform and opening up policy was adopted, the system of multiparty cooperation and political consultation under the leadership of the CPC underwent constant improvement and development. The CPPCC carries out political consultation before important state decisions are made and during the course of their implementation. People's congresses make policy decisions mostly by voting, and governments carry out these decisions. From this, it can be seen that the CPPCC plays an irreplaceable role in the political framework and process now in effect in China. Political consultation, democratic oversight, and participation in the deliberation and administration of state affairs are important responsibilities of the CPPCC. Consultation occurs not only in the areas of major state policies, major personnel decisions and the writing of important laws; the Charter of the CPPCC is itself a product of consultation. Consultation is not limited to consultation of the ruling party with the other parties participating in government, but also includes consultation of the ruling party with all the groups in the CPPCC and representatives of various sectors of society. The system of guarantees for the development of the CPPCC's work does not depend mainly on compulsory implementation backed by state power, but on a system of self-discipline and mutual discipline and on the mainstream of public opinion, culture and political influence. As for the results achieved through political consultation, this kind of soft restraint, soft power and soft oversight can prevent the waste of the state's political capital, and this kind of gentle method regularly achieves more substantial and enduring results than strict regulations can. The exercise of democratic oversight through proposals, resolutions, comments, criticisms and suggestions is a kind of political oversight. Although it is not backed by the force of state power, it in fact has considerable political and social influence and practice has shown it to be effective. We are presently working hard to institutionalize, standardize and procedurize consultative democracy so that it can play a greater role in developing democratic politics in China.

2. Consultative participation in administering government
When China had a planned economy, the administration of government was carried out almost exclusively through giving and following orders. Now in the socialist market economy, to achieve the goal of administrative management China has gradually developed non-mandatory administrative methods such as administrative guidance and contracts to be used in addition to mandatory administrative procedures. These non-mandatory administrative procedures help improve the strained relations between administrative organs and private citizens. We advocate building a service-oriented government and raising the government's capability to provide services and the level of services provided. In a complex administrative environment, we cannot simply use mandatory measures such as giving orders and meting out punishments, but must use a combination of soft and mandatory measures. Successful explorations on using this model have already been carried out in a number of areas. China's administrative law and the diversification of the forms of administrative action in public administration have changed the old pattern of controlling everything through administrative orders, and have greatly expanded the scope of public participation in administrative management. This is not only helpful for achieving the goals of administrative management, but also effectively steers modern administration in the direction of becoming more democratic, scientific and effective. There are a variety of forms of public participation in public governance in China today, and the highest form is consultative government administration which increasingly represents the trend of development and is principally manifested on three levels. First, attention is paid to using the consultative mechanism during the formulation of regulations, particularly when the government is writing draft administrative laws and regulations and formulating rules and while some mass organizations are formulating rules for self-governance. Second, during the course of law enforcement, the administrative bodies exercising administrative discretionary power consult with interested parties to the extent permitted by law, and give full consideration to the legitimate interests of such parties to make the exercise of discretionary power as reasonable and law-based as possible. Third, consultation is used in exploring ways to public private partnerships that draw on the strengths of both public and private choice mechanisms.

3. Consultative self-governance in primary-level democracy
As China has developed and progressed since the reform and opening up policy was adopted, urban and rural primary-level democracy has constantly expanded, the channels through which citizens participate in government have grown, and the ways in which democracy is given expression have proliferated. A primary-level democratic self-governance system consisting of rural villagers' committees, urban residents' committees and enterprise workers' congresses is already in place. Citizens directly exercise the right of democratic election, decision making, administration and oversight in primary-level mass self-governing organizations and exercise democratic self-governance in these organizations' public affairs and public welfare undertakings. These activities have already become the most direct and widespread form of practical democracy. In recent years, a new form of village governance has emerged under which villagers jointly adopt and implement village statutes. This changed the form of governance from one based on personal rule by the most capable individuals to one based on institutions. In the framework of village statutes, there are clearly demarcated boundaries and norms for the exercise the rights of every individual and organization and for the exercise of public power. This has greatly stimulated the enthusiasm of villagers to participate in village governance and improvement. At present, there are a number of counties and townships that are exploring new ways to expand direct democracy.

4. Consultative governance in the area of environmental protection
In today's world, environmental protection is increasingly becoming a global undertaking, and one country's environmental problems can have global effects. China has made environmental protection and resource conservation a basic state policy, and it actively participates in global environmental-protection efforts and international cooperation, assumes international obligations, and works with others to promote global environmental-protection undertakings. For example, the Chinese government signed the Kyoto Protocol and is actively abiding by its prescriptions. It has implemented the China National Plan for Coping with Climate Change, strengthened its capability to deal with climate change and made contribution to protecting the global climate. In addition, China joined with a number of other countries including Japan in fruitful cooperation to conserve energy and protect the environment. In recent years, China has given priority to optimizing its industrial mix, changed the pattern of development, encouraged and supported the circular economy and environmental industries, taken the new path of industrialization and urbanization to promote energy-saving, clean and safe development, and striven to make society more resource conserving and environmentally friendly. Through tireless efforts in many areas, significant progress was made in conserving energy and reducing emissions. In 2007, China's energy consumption per unit of production dropped 2.37%; the chemical oxygen demand and carbon dioxide emissions both decreased for the first time in recent years; and the Chinese people became more aware of the importance of conserving resources and protecting the environment and made greater efforts in this area.

In general, China has already begun to form a model for protecting and improving the environment that combines both soft and hard law. On the one hand, it emphasizes the hard law by improving the environmental-protection legal system, strengthening law enforcement, acting in strict accordance with the law, closing down a large number of companies with backward production facilities in accordance with the law, and strictly punishing serious violations of environmental-protection laws and regulations. On the other hand, it emphasizes the soft law and the consultative mechanism by using publicity to raise the ecological awareness of all of society and mobilizing all enterprises, social groups and citizens to actively participate in making society more resource conserving and environmentally friendly. For example, China started the Common Action to Conserve Energy and Reduce Emissions to raise the environmental awareness of the people. The government strongly promotes environmental standards management and clearly requires enterprises and other social organizations to have a sense of social responsibility and make a conscious effort to voluntarily participate in efforts to improve the environment. Many social groups formulated their own action guide for saving energy and reducing emissions and other self-restraint soft-law norms, and many people actively support and participate in social activities promoting energy conservation, emissions reduction and environmental protection.

5. Consultation and dialogue to establish human rights guarantees
As a founding member of the United Nations and a permanent member of the UN Security Council, China has always carefully adhered to the purposes and principles of the UN Charter and the Universal Declaration of Human Rights, and has made significant progress and accomplishments in its human rights efforts as well as made its own contributions to international human rights efforts. China has not only brought about great changes in the living conditions and intellectual and cultural quality of all its people and instituted effective guarantees for the political rights of the people. It has also put into operation a fairly comprehensive political system and legal structure to guarantee the democratic rights of the people manifested by a beneficial trend of constant improvement in the human rights situation. The Chinese government has made a huge investment of funds to address the problem of poverty in the country, which has helped over 200 million rural residents escape from abject poverty and solve the problem of inadequate food and clothing. China's human rights guarantees comprise a systematic project. In this process, the citizens of the country are not realizing their human rights through opposition to the government but are ensuring their human rights through consultation among the government, society, enterprises and individuals. China also makes full use of the role of consultation in human rights legislation. The Constitution revised on the basis of extensive discussion and consultation in 2004, for instance, incorporated the statement, "The country respects and guarantees human rights." China passed human rights laws such as the Administrative Procedure Law, the Law on State Compensation, the Law on Administrative Permits, the Law on Property Rights and the Law on Labor Contracts, and revised the Criminal Procedure Law and the Civil Procedure Law. The country also further improved procedural law to guarantee human rights and clearly instituted the principle of presumption of innocence. While working to improve human rights conditions in the country, China has also actively engaged in international exchanges and cooperation in human rights. The country is now a participant in more than 20 global human rights treaties. It actively participates in the work of the UN Commission on Human Rights, actively participated in setting up the UN Human Rights Council and advocates the Council as a platform for all countries to trade ideas, consult, discuss and work together on an equal basis to improve international human rights conditions.

We are also very clearly aware that there are still many problems and difficulties in China's human rights work, such as defects in the economic and political structures. The Chinese government, however, has never avoided these problems. Instead, it has publicly vowed to resolve these problems through comprehensive economic and social development and constant improvement in democracy and the rule of law. We believe that the impact of different cultural backgrounds results in differing views on human rights issues and different means for realizing human rights. This is an objective reality. These differences sometimes create misunderstandings and may even lead to conflicts, something that has often happened in history. If we use the ideals of harmony and consultation in a new approach to addressing different understandings of human rights issues, we could turn these different viewpoints on human rights issues into a driving force for developing human rights. The civilizations of different countries are different so they have different understandings of human rights issues and different ways of realizing human rights, but each of these different viewpoints and practical norms has its own strengths and is the crystallization of human wisdom under different cultural backgrounds. If all countries respect each other and trade ideas, they will understand each other better and reduce problems and conflicts over human rights issues. If they learn from and complement each other, they will inevitably improve their respective human rights conditions and promote overall development of human rights around the globe.

6. Consultation and cooperation in international relations
In international relations, China advocates that the people of all countries should work together to develop a harmonious world that enjoys lasting peace and prosperity for all. To this end, we should respect the purposes and principles of the UN Charter and comply with international law and the universally recognized norms of international relations, and promote a spirit of democracy, amicability, cooperation and win-win progress in international relations. In the area of politics, we should respect each other, engage in consultation as equals, and work together to make international relations more democratic. In the area of economics, we should cooperate and complement each other and work together to promote economic globalization in which there is balanced development, shared benefits and win-win progress. In terms of culture, countries should learn from each other, seek common ground and reserve differences, respect diversity in the world and work together to promote prosperity and progress in human civilization. In security matters, we should promote mutual trust, strengthen cooperation, adhere to peaceful means rather than warfare to resolve international disputes and work together to safeguard world peace and stability. In environmental protection, countries should help each other, combine forces to make progress and work together to cherish Mother Earth on which human society depends for survival.

China works to develop friendly cooperation with all countries on the basis of the Five Principles for Peaceful Coexistence and advocates resolving international disputes through consultation and negotiation. China places great importance on strengthening strategic dialogue, enhancing mutual trust, strengthening cooperation, handling differences in an appropriate manner and promoting the development of long-term, stable and sound relations with developed countries, including Japan. In foreign relations with surrounding countries, China follows a policy of maintaining good relations as partners, works to strengthen good neighborly relations and practical cooperation with surrounding countries, including Japan, actively develops regional cooperation, works with surrounding countries to create a regional environment of peace and stability, equality and mutual trust, and win-win cooperation. China works to strengthen unity and cooperation with other developing countries, enhance traditional friendship with them, expand practical cooperation, provide assistance to them as much as possible, help them realize their legitimate demands and help protect their common interests. China actively participates in multilateral affairs, fulfills its share of international obligations, plays a constructive role and promotes the development of a more equitable and rational world order. China is working to increase its market access in line with the current international economic and trade rules, legally protect the legal rights and interests of partners in cooperation, improve the international trade and finance system, make trade and investment more free and unfettered, and appropriately handle trade frictions through negotiation and cooperation.

In the above discussion I introduced to you China's trials and experiences with the soft law and the consultative mechanism in China's social transformation. As you can no doubt see, China's trials in the use of a consultative mechanism have all been in the midst of development so there are still many imperfections that still need to be addressed in both theory and actual practice. We sincerely hope we can engage in thorough study and discussion with Japanese academics and experts in various areas, learn and borrow from the successful practices of Japan, and continue to innovate and make progress in integrating theory with actual practice.

Luo Haocai

  • President, China Society for Human Rights Studies