4th Plenum: Towards Rule of Law with Chinese Characteristics

The 4th Plenum of the 18th Central Committee of the Communist Party of China held in late October had a major focus on issues of legal reform. The Decision of the Plenum conveys fairly strongly that even as China tries to overhaul its politics, to introduce a greater measure of predictability and accountability in the system, it is the Party’s supremacy that is the end goal of all efforts. A major thrust also remains on developing legal structures and principles that are specifically applicable to China and possess ‘Chinese characteristics’.

 

The Run-up 

The 3rd Plenum of the CPC is traditionally the most significant of the Plenums but the 4th Plenum comes against the backdrop of the winding down of the mass line campaign launched last year and the major take-downs of Zhou Yongkang and Gen. Xu Caihou in the anti-corruption campaign.

Much of the official pronouncements in the run-up to the 4th Plenum were about linking rule of law and governance to creating better market conditions for competition, a follow up also to the Decision of the 3rd Plenum. Further, there are at least some official Chinese interpretations that portray the 4th Plenum as laying the foundation for a new way of assessing China’s development, and not just its economic development, and that the emphasis on anti-corruption and the reform of the judicial system were indeed a kind of political reform.

 

The Plenum Decision

Unlike in the 3rd Plenum, where the Decision that followed the Communiqué was substantially different in content and tenor, there are no big differences between the Communiqué and the Decision of the 4th Plenum. While, the Decision of the 3rd Plenum made a major ideological statement like calling for the markets to play a decisive role, the 4th Plenum Decision does not make any major departures. That said, it is likely to have just as far-reaching consequences.

While the West tends to view the push towards rule of law in China with the CPC continuing to remain in power as being contradictory, as a Global Times editorial noted, China’s national conditions demand this.[1] At least one Chinese academic has declared that rule of law and rule by party can coexist[2] and more such affirmations can be expected on the way towards creating a ‘socialist rule of law’. It is evident therefore that the ‘rule of law’ is quite something else in the Chinese conception and ‘rule by law’ or ‘rule according to law’ is a more accurate description of the state of affairs that Chinese leaders are aiming at. Chinese rights activists will however, take what they can get. Already, over the decade past, more Chinese have taken to demanding only that the authorities follow at least the letter of the law, if not the spirit, rather than demanding outright political transformation. Even given the ‘Three Supremes’ announced by Hu Jintao in 2007, according to which judges are expected to observe the supremacy of the Party’s mission, the people’s interests, and the law[3] – in that order – the 4th Plenum Decision should create more opportunities for rights activists over a wider range of issues, and perhaps, even reduce the ability of Party cadre to target petitioners and litigants with torture, enforced disappearances and so on, as is the case now.[4]

The 4th Plenum Decision clearly states that ‘ in comparison with the development needs of the undertakings of the Party and the State, in comparison with the expectations of the popular masses, and in comparison with moving ruling the country according to the law forward and modernizing our governing ability, rule of law construction still displays many problems …’.[5] Once again, note the order in which the requirements are listed. The Party comes first but the reference to popular expectations is an acknowledgment of the legitimacy crises engendered by corruption in the Party’s ranks. There is a fairly large and significant section in the Decision that considers society, social attitudes and norms. Nobody is allowed ‘to let their word replace the law, use their power to suppress the law, or bend the law for friends or relatives under any excuse and in any way.’[6]

There is thus, a focus on openness, fairness, and independence of the judicial system; many of the reforms announced in Decision are of a broad and cross-jurisdictional nature.

In addition to the legal profession and legal aid – there will be more professionally-trained and -qualified judges, for example – the Decision also deals with the legislative system, administrative rule-making, domestic and foreign NGOs, and Party-state relations. One of the highlights of the Decision is, in fact, a large section devoted to the military, stating the ‘fundamental need for ruling the Army according to the law’.[7] It is however, unlikely that this indicates a return to the issue of nationalization of the armed forces.

The Decision also pushes for courts whose remit will cut across current administrative boundaries in order to reduce arbitrariness and protectionism at the local level. At present, Chinese judges at any administrative level owe their positions and salary to political power at the same level; this creates pressure on them to follow orders that are taken in the interest of local leaders.[8] The proposals in this respect, it must be understood, are part of an ongoing contestation in the Chinese political system of central government power versus the power of the provinces.

Meanwhile, it remains to be seen if the call in the Decision for strengthening of a constitutional review and interpretation mechanism means that such will actually be the case.

 

A Chinese Way

The Plenum Decision also calls for ‘[p]ersisting in integrating ruling the country according to the law and ruling the country according to virtue’ and in ‘[p]ersisting in starting from China’s reality’. These are clear expressions that China is seeking its own development path aimed at a ‘rule of law with Chinese characteristics’ at the crux of which is the Party’s supremacy. It states unambiguously that the Party ‘can absolutely not indiscriminately copy foreign rule of law concepts and models’, in effect, a rejection of a liberal, democratic conception of the rule of law. As with China’s economic structure and increasingly, its international relations, the Party is arguing that there is no one-size fits-all approach to democracy or governance.

The 4th Plenum outcomes must also be weighed against Xi Jinping’s consolidation of personal power. This consolidation is seen as essential to whip the Party into shape as it were, but as is obvious, it also contradicts the main thrust of the 4th Plenum Decision, that is, of ensuring adherence to and respect for the law by Party functionaries. The other side of the picture is that Xi’s consolidation of power has also led to an increase in the collective power of the Politburo Standing Committee – consider for instance, Wang Qishan’s role in the anti-corruption campaign – which in turn supports the larger objective of trying to achieve reforms across the board within the Party and outside.[9]

 

India Model?

What does India have to do with China’s march towards the ‘rule of law’ even if the Party ostensibly seeks to imprint ‘Chinese characteristics’ in the process? For one, as the CPC has shown in the past, it is willing to learn from and adapt foreign concepts and ideas to its situation. The idea of circuit tribunals and courts that cross administrative lines has its reference, perhaps, in the US system.[10] Thus, a country of one billion plus people will surely have plenty to learn from another country of a billion plus.

Both Chinese government and Party departments and private citizens have India in their sights on a variety of themes from the study of the concepts and practice of democracy, including elections, to Gandhian philosophy, including that of non-violence and civil disobedience. Scholars have pointed out – no doubt, keeping the experience of Tiananmen Square 1989 in mind – that Gandhian methods have great resonance in China given the rising numbers of protests.[11]

From another angle, however, India is a rather poor model. The 4th Plenum Decision also seeks to ‘[s] trengthen the entire population’s rule of law consciousness’, in other words, to China is seeking to develop an ingrained culture of respect for law. Indian society displays a poor record of rule of law consciousness or respect for the law at the societal level – connections on the basis of class, caste, religious and ethnic lines are seen as more valuable than any idea of citizenship. This can actually reinforce Chinese views on the inapplicability of the liberal democracy model to China or of the one-size-fits-all approach.

Notes

[1] http://www.globaltimes.cn/content/887350.shtml

[2] http://www.scmp.com/news/china/article/1620896/rule-law-and-rule-party-can-coexist-party-scholar-says

[3] http://lawprofessors.typepad.com/china_law_prof_blog/2014/10/chinas-fourth-plenum-communiqu%C3%A9-little-sizzle-less-steak.html

[4] http://lawprofessors.typepad.com/china_law_prof_blog/2014/10/chinas-fourth-plenum-communiqu%C3%A9-little-sizzle-less-steak.html

[5] http://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-the-law-forward/

[6] http://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-the-law-forward/

[7] http://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-the-law-forward/ See also, http://globalmjreform.blogspot.hk/2014/10/increased-attention-to-rule-of-law.html

[8] http://lawprofessors.typepad.com/china_law_prof_blog/2014/10/chinas-fourth-plenum-communiqu%C3%A9-little-sizzle-less-steak.html

[9] http://www.hoover.org/sites/default/files/research/docs/clm45am-what_they_did_on_their_summer_vacation.pdf

[10] http://lawprofessors.typepad.com/china_law_prof_blog/2014/10/chinas-fourth-plenum-communiqu%C3%A9-little-sizzle-less-steak.html

[11] http://icsin.org/ICS/WednesdaySeminarReport/35.pdf

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