Corruption control and remedies against administrative acts: Meritocratic civil service and reforms of administrative law

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Karin Buhmann Associate Professor of legal science at the Institute of Food and Resource Economics at the University of Copenhagen ([email protected])

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This article gives an overview of law and governance in China focussing on the tradition of meritocratic governance which is having a renaissance with law-based recruitment reforms in the legal sector and parts of the public administration, as well as reforms of administrative law undertaken since 1989 which provide Chinese citizens with increased remedies against official abuse of power.

The tradition – a source and a constraint

It is well known that gunpowder, porcelain and (possibly thanks to Marco Polo) maybe even such a West-ish dish as pasta originate from China. It is less well-known that China has a more than two thousand year old legal system and a tradition of governance based on ‘good men’, set up to control against corruption and other forms of official abuse of power. Understanding of this system may make it easier to appreciate China’s course of reform and that human rights and rule of law may not be as foreign to China as the violations taking place during the second half of the 20th century, particularly during the legal nihilism of the Cultural Revolution (1966-1976) and the 1989 Tienanmen events may lead us to think. Even though Chinese leaders and academics are often reluctant to talk about China’s philophical and normative past based i.a. on the teachings of Confucius and applied during the imperial dynasties, as external observers we may do well to remind ourselves that China has a rich cultural, philosophical and even legal tradition. The latter comprised, i.a., a set of Codes dealing with criminal, administrative and civil law. Originating even before but refined during the Tang dynasty (618-907) when the Nordic countries were still in the late Iron Age, this code became a model for laws of later dynasties until the latter years of the final one, the Qing dynasty (1644-1911) when China set on a course of modernising its legal system based on Japan’s modern law which was itself inspired by the German and French legal systems of the late 19th century.

The meritocratic governance system was intended to ensure that the vast country which China was already then was ruled by bright and uncorrupt civil servants. Civil servants were trained in academies where they studied the teachings of Confucius. These teachings included a strong focus on morals according to which the ruler and his bureaucracy must apply their power to the benefit of all and not to that of themselves. As often observed in contemporary societies, corruption and other forms of official abuse of power almost invariably lead to violations of the population’s enjoyment of rights that we today consider human rights. Law-based administrative and criminal codes ensured that civil servants were not to be appointed to positions in provinces where they had personal or other interests, and that those who did not adhere to the Confucian moral code where punished. Punishments ranged from mere demotions to banishment to far-away provinces. Conversely, the system allowed those who observed the Confucian and legal codes and demonstrated the Confucian version of ‘good governance’ were promoted.

In principle, the academies and the civil service were open to all (males only, though), simply based on their merits. In practice, however, just like studies prove to be the case in many contemporary societies, the son of the learned man stood a better chance of acceptance into the academy, and thus of grounding a career as a civil servant, than the son of peasant. Entry to the civil service was based on exams to demonstrate the knowledge of the candidate.

A special corps of travelling civil servants (‘the censorate’) was charged with supervision of the civil service. The censors investigated on their own and were allowed to receive and handle complaints of abuse of power and bad governance.

Governance in China was based on this meritocratic system since its establishment 2500 years ago until the fall of the last imperial dynasty in 1911. Although it was not perfect and sometimes not observed, it demonstrates that tendencies to favour particular political allegiances and towards abuse of official power, tendencies that outside observers often associate with contemporary China, are not necessarily the Chinese way. Indeed, in later years reforms have been introduced to ease requirements of membership of the Chinese Communist Party (CCP) for many government posts as well as in the legal system. Entry exams and educational requirements have been introduced for example for judges and prosecutors.

Perhaps even more of a surprising to many, the Chinese meritocratic system may have inspired meritocratic practices in Europe. The German legal and social scientist Max Weber (1864-1920) studied the Chinese system during the latter years of the final imperial dynastic times. He was impressed by the system and recommended its use. Several centuries prior to Weber, Christian missionaries had noted the system which built on a way of thinking which was alien to Europe prior to the human rights and democracy inspired movements of the late 18th century and onwards.

China’s legal and normative tradition is not only a picture of beauty. The Confucian moral codes were highly status based in other ways, and parallel with the Confucian governance codes existed a legal tradition, ‘The Legalist School’, which held that power was for the use of the ruler to preserve his position, and that severe punishments was the way to make individuals behave, civil servants as well as ordinary subjects.

Post-1989 Law Reforms

It may seem a paradox that a country known by many as one which during the Cultural Revolution abolished almost all laws and legal institutions and in which severe human rights violations have been reported by various sources should be one of a meritocratic and legal tradition of significance today. Even so, there are signs that reforms undertaken in later years are not only inspired by other legal systems but also build on the tradition which was interrupted with the fall of the Qing dynasties in 1911. In addition to the reintroduction of meritocratic entry exams, reforms since 1989 of the administrative system and particularly the laws governing its procedures show features that may not only be inspired by other countries but also build on China’s own tradition.

China lacks an actual administrative code. However, six statutes promulgated since 1989 have supplemented basic guarantees in the Civil Code and considerably strengthened citizens’, companies’ and organisations’ legal certainty and rights to administrative due process in a number of areas. Procedural rules have been introduced to govern the issuance of administrative licences (e.g. permits to set up an import business) or penalties (such a fines or the revocation of a licence). Rules to prevent and punish corruption and other forms of abuse of power form a significant portion of the statutes. Compensation paid by the state is provided for for a number of types of administrative acts violating the law. A statute on supervision of administrative organs’ handling of their tasks and power supplements supervisory mechanisms found within the Party system. Perhaps as a legacy of the Legalis
t school’s ideas on deterrence through threats of punishment, provisions for punishment of civil servants who abuse their power or otherwise break the law are about as numerous as those establishing procedures for proper handling of the administration’s tasks.

While both constraints on the use of administrative detention and rights to compensation for certain form of abuse of administrative power remain insufficient from a human rights point of view, the new rules provide for rights to make complaints about administrative decisions on a number of grounds including illegality and use of powers for other purposes than those for which they were granted. The system provides for administrative reconsideration as well as judicial review of concrete administrative acts. The rights to complain are not just granted in formality, but actually used.

The Chinese statutes on administrative law and its procedures do not apply human rights terminology. In this, however, it is like the administrative law of most other countries.

Other recent law reforms are significant too in terms of human rights: The Legislation Law, promulgated in 2000, allows for public consultations on bills for new laws. The substance of the Labour Contract Law which took effect on 1 January this year was influenced by comments from individuals and corporate organisations, including the European and American Chambers of Commerce. As further described in this blog’s article by Jonas Grimheden, laws have introduced merit requirements and entry exams for the legal profession. China’a entry to the WTO which resulted in a number of reforms to increase transparency of commercially relevant law and to strengthen legal remedies for administrative acts pertaining to companies has played a part too, and may have contributed to a greater awareness of the legal system as an institution to deal with complaints. Unintended but not insignificant, the impact of China’s WTO membership may be quite considerable in terms of spill-over on institutions benefiting human rights and the rule of law.

Perspectives

There are indications that China is experiencing a return to certain values of its tradition, particularly certain Confucian ideas. Much of Confucianism was devoted to ensuring a society based on harmonious relations. Part of that harmony in society of 2500 years ago was brought about by people having sufficient food, shelter and security. In this too, pre-modern China did not differ from the needs or ideals of many other pre-modern societies. Other parts of that harmony was brought about, and indeed preserved, by having a government of the best and least corrupt minds to ensure, precisely, that food and other resources were not diverted to the coffers of greedy officials.

President Hu has announced a policy of creating a harmonious society. Part of this policy is about decreasing the considerable differences in access to food, shelter, education and health services between urban and rural areas, and between Eastern and Western China. While access to food, shelter, education and health services does not automatically render a country human rights compliant, just like economic growth does not automatically lead to human rights, they are nevertheless significant elements in the entire range of human rights. When assessing China critically, external observers may do well to remind ourselves that other large countries (including in the West, the United States) also employ the death penalty, and that China’s reforms over the past 30 years have had not only to address civil and political rights but also severe poverty, itself recognised as a violation of human rights, for a large proportion of the population.

It may not be realistic to expect that a country with a rich cultural, legal and governance tradition dating back more than 2500 years which moreover represents one fifth of the world’s population today should modernise and reform exactly the way countries elsewhere have done. Given its point of departure at the on-set of reforms 30 years ago, even if China did introduce reforms of law and governance like Europe, we should not in fairness expect to see things at current Europe levels until China has had as many years to implement reforms – which means allowing 200 years, give or take … In fact and as also demonstrated by other articles available on this thematic blog, China seems to be modernising and reforming in its own way and much faster, drawing on a selection of sources of influence from the international society, specific other countries, and its own traditions.

Corruption control and remedies against administrative acts: Meritocratic civil service and reforms of administrative law
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