Legal quagmire

Can a one-party state have the rule of law if the Party is above the law?

China's President Xi walks with retired leaders Jiang and Hu as they arrive at the National Day Reception to mark the 65th anniversary of the founding of People's Republic of China, at the Great Hall of the People, in Beijing

Xi: put rule of law in spotlight

The guilty group were put on display in front of a large crowd in Changsha. They wore placards around their necks giving their names and the crimes they had committed. Some had already had their sentences announced, but others were still to face trial.

But if the scenes in Hunan province last month stoked memories of the public humiliations of the Cultural Revolution, the state media didn’t dwell on them.

Xinhua opted for a scholarly air, mentioning that public sentencing of this type was banned in 1988, and that Chinese citizens dislike it because it is “against the rule of law”.

“It’s curious that such ancient rituals are still performed today,” cautioned China Youth Daily, a little more bravely.

“It has been 36 years since reform and opening up in China, but this serves as a negative example to the rule of law,” the paper added.

It was left to Yang Bin, a judge, to offer the most disapproving view of events in Changsha. “My friends told me that public trial is part of the country’s ‘glorious revolutionary tradition’, held once every year,” Yang wrote on his weibo account. “Similar public trials aren’t uncommon in other places too – it seems that there is still a long way to go in order to achieve rule of law…”

Coverage of the perp parade was unfortunate in its timing, coinciding with last week’s Fourth Plenum, a gathering of the Chinese Communist Party’s (CPC) Central Committee, which headlined its agenda with how the ‘socialist rule of law’ could be advanced across the country.

A major problem in responding to the theme are the cross-cultural differences in how the term is understood. Disagreement begins with how the concept is translated between Chinese and English, with the Chinese use of yi fa zhi guo variously described as denoting “rule of law”, “rule by law” or “governing according to law”.

What’s much clearer is the insistence that the rule of law in China can only be guaranteed under the Party’s leadership. Some nuance returns, however, when state media discusses the constitution (China’s “fundamental law” in Party-speak).

“The Party should carry out its activities within the framework of the Constitution and other laws,” an editorial in the Global Times insisted last week, also reminding readers that “no organisation or individual has the privilege to overstep the Constitution and any other laws”.

More critical voices highlight the ambiguities that entrench Party rule in the constitution, making it difficult for the same organisation to be subordinate to it. One of the constitution’s Four Basic Principles is that the leadership of the Party is fundamental, and something that can only be modified by the Party itself.

The Global Times has no time for any suggestion of confusion, however, particularly those sown by Western media: “By their analysis, the leadership of the CPC and the rule of law is contradictory. These misperceptions must be swept away. Official documents and leaders’ speeches in recent years have repeatedly cast light on the combination of the CPC’s leadership, the position of the people as masters of the country and the rule of law. This emphasises that the Party should lead legislation, ensure law enforcement and set an example by abiding by the law.”

But what if the Party fails to set an example? Rule of law in Western theory implies that the power of political leaders is constrained by laws and regulations, Victor Mair, a professor of Chinese language at the University of Pennsylvania, told the Wall Street Journal. In contrast, most scholarly opinion outside China believes that “rule by law” is a more appropriate interpretation of Beijing’s approach, in which the legal system is seen by the Party primarily as a means to govern.

Much of this stems from Chinese history, says Francis Fukuyama, in his latest book Political Order and Political Decay. China is the only world civilisation that has never developed “true rule of law”, Fukuyama suggests. Israel, the Christian West, the Muslim world and India all have legal systems that originated in religion, he says, with legal codes interpreted and implemented by religious scholars and jurists. That means that “the keepers of the law” were social groups separate from the political authorities. But in China it was different. “There was never transcendental religion, and there was never a pretense that law had a divine origin,” Fukuyama believes. “Law was seen as a rational human instrument by which the state exercised its authority and maintained public order.”

In Fukuyama’s view, China’s legal system has never limited or bounded the sovereign himself, who was the ultimate source of the law. John Delury, a China historian at Yonsei University in South Korea, has a similar view. He told the Wall Street Journal last week that the Chinese have adopted various historical interpretations for their own legal system including the Legalist school (which argued for clear rules, with harsh punishment for offenders) and the Confucians (who thought that society was best governed by a virtuous elite). “But the notion that the ruling elite should themselves be restrained by laws has never been seriously considered,” Delury says.

That means less recognition of concepts commonly accepted by Western democracies, like the separation of powers (between the legislature, the executive and judiciary). And it also implies less of a role for the law as a genuinely independent check on political authority.

This isn’t a concern to proponents of the “socialist rule of law”, though, who see the Party as the guarantor of the legal system – and implicitly of China’s future too.

“It is obvious that the West and the CPC share a different purpose in advancing the rule of law in China,” the Global Times explains. “Our goal is to realise people’s happiness and national prosperity through improving socialist institutions. But the West doesn’t truly care about the fate of 1.3 billion people. What they care about are their own interests.”

Implanting foreign ideas in Chinese soil is dangerous, the newspaper suggests: “An abrupt approach at the huge cost of social uncertainty won’t be China’s choice to advance the rule of law. It must be able to improve Chinese people’s livelihoods. This is a request raised by our own people. Only the long-ruling CPC can be serious in taking this responsibility.”

Of course, Xi’s administration has already introduced some legal reforms, most notably the abolition of the ‘re-education through labour’ programmes (also known as laojiao, see WiC218) that formerly detained – without trial – drug users, prostitutes and social nuisances. The Plenum communiqué also said that the Supreme People’s Court is going to explore establishing courts and prosecutors offices operating across regions. In June six pilot programmes were approved in which the supervision of the local courts was switched to the provincial level. The goal is to protect judges from local pressure by removing the powers of funding and appointment from the county authorities.

These proposals are part of Xi Jinping’s wider effort to “lock power in a cage” by making the legal system more predictable and more accountable to ordinary people.

But the Fourth Plenum’s commitment to creating a more empowered judiciary also stipulates the total loyalty expected of the judges to the Party, the state, the people and the law.

“Nothing is accidental in the language of the Party communiqué and the word order here is no exception,” notes Donald Clarke, a professor of law at George Washington University Law School and editor of the Chinese Law Prof Blog. “As always, the Party comes first.”

This sense of the Party’s primacy fits with the consensus from foreign commentators on the Plenum’s core intent. The goal is to institutionalise the legal process in a way that strengthens the CPC’s control at the central level – not just in preventing local apparatchiks from interfering with the courts, but also in setting the stage for whipping them into line on other policy pronouncements, and also heightening the chances of punishment for the kind of illegal behaviour that so enrages public opinion.

Few in the Chinese media would disagree with this interpretation, with Xinhua even adding examples of everyday situations in which ordinary Chinese might understand the rule of law better too.

In one case a local Party secretary lectures a reporter on the need to be law-abiding. Then he jumps out of his car to take charge of a demolition project, deciding personally which buildings to blow up.

This man is “spouting off eloquently in his speeches about the rule of law, but abusing power in how he takes his decisions,” the state news agency warns.

The second example describes how a “grassroots” Party boss comes under pressure from someone who wants help in a court case. The official refuses, telling the man that the court is independent and that he has no right to intervene. “But you own the city, how can the court not listen to you?” his petitioner demands incredulously.

“The cadre said that he felt a chill run down his spine,” Xinhua reports. “Although he respects the rule of law, he knows that others don’t believe in it themselves.”

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