After the Fourth Plenum: What Direction for Law in China?

On October 23, Chinese authorities concluded their annual Party plenum, focused on “ruling China according to law” (yifa zhiguo)—the first time that top Chinese leaders have designated law as the central focus for the meeting. In the weeks since, observers have been parsing the full plenum decision for signs as to the future direction of Chinese legal reform (for the original Chinese text of the full decision, see People’s Daily, October 29).

First introduced into a Party plenum decision in 1997, and incorporated into the Chinese constitution in 1999, “rule according to law” has proven a contested term for Chinese state and society alike. Authorities have used it as an umbrella to promote a range of administrative and legal reforms. Citizens and activists have sought to use both the rhetoric associated with the term, and the practical reforms accompanying it, as wedges to promote deeper institutional and political change in an authoritarian state.

Now, the Decision has given Chinese President Xi Jinping the opportunity to put his own gloss on the concept. Broadly speaking, this takes three forms.

Technical Legal Reforms to Improve Governance

First, the Decision gives support to a range of technical legal reforms aimed at strengthening governance of state and society.

For example, the Decision seeks to centralize judicial power to help curb the interference of local authorities in court decisions. The Supreme People’s Court will create circuit tribunals (xunhui fating) for handling “important” cases that implicate multiple administrative jurisdictions. The Decision green-lights experiments with similar cross-jurisdictional local courts and procuratorates. This parallels the Party’s 2013 Third Plenum Decision, which gave birth to experimental reforms in six provinces removing control over court personnel and funding from the hands of local authorities, and vesting it with provincial authorities (see China Brief, March 20; China Brief, June 19). 2015 will likely see similar bureaucratic experimentation as the recent Decision gives rise to its own implementation efforts. Corresponding reforms may also take place within official cadre evaluation systems, as officials are instructed to keep records of the frequency of interference by local authorities in judicial decisions and link such interference to their career evaluations and salaries.

The Decision also provides support for concepts of judicial professionalism and litigation stressed during the late 1990s and early 2000s, but that had gone into eclipse in recent years. Starting around 2005—and particularly with the appointment of Wang Shengjun as Supreme People’s Court (SPC) head in 2008—official rhetoric shifted against those earlier concepts, and in favor of politicized mediation and populist judging as a means to do whatever it takes to resolve citizen disputes—including throwing legal norms out the window. [1]

Now, the 2014 Decision strikes a somewhat different tone. Trials are supposed to be the center of the litigation system (shenpan wei zhongxin de susong zhidu gaige). Citizen petitions are to be led back into legal channels (ba xinfang naru fazhihua guidao). And judicial professionalization is being stressed once again (tuijin fazhi zhuanmen duiwu zhengguihua, zhuanyehua, zhiyehua).

Such developments suggest that central Party authorities have given China’s legal technocrats, such as those surrounding current SPC head Zhou Qiang, a certain degree of room to maneuver. This is not limited to the judicial reforms discussed above, but also includes a range of administrative, procedural and transparency-related reforms as well (Freedominfo.org, November 4; Beijing Daily, November 2).

Naturally, the boundaries of this space are highly contested. Faced with internal Party opposition, language that “ruling China according to law” also incorporates the concept of “governing China according to the constitution” was apparently withdrawn from earlier drafts of the Decision during the eight-month long drafting process. As Qian Gang notes, it was only placed back in the document on the very last day of the plenum (China Media Project, November 10). Skirmishes continue over the meaning of the language. Chinese state-run media has stressed that it is not equivalent to concepts of “Western” constitutional democracy (CCTV, November 5). Former SPC president Xiao Yang, strongly identified with late 1990s reform efforts, has revived proposals to create a constitutional committee within the national legislature charged with reviewing the legality and constitutionality of laws (see China Brief, May 11, 2012; Beijing Youth Daily, November 8).

Strengthened Party Control

Second, the Decision emphasizes that central support for legal reforms does not mean any change the core principle of one-party political control.

The Decision reiterates the “Three Supremes” concept from the administration of former president  Hu Jintao, which emphasizes Party doctrine and the popular interest as equal (if not superior) sources to the constitution and law as sources to guide the work of Chinese judges and prosecutors. It also clearly states that political-legal committees will remain the core organizational channel for implementing Party control of the legal system.

But the Decision goes beyond mere rote recitation of Party control. It also takes steps toward enshrining it in a more institutional manner. For example, the Decision provides that all legislation implicating “important” policy decisions should be reported out of the national legislature for central Party leaders to “discuss and decide.” Similarly, all “important” amendments of existing laws are to be reported to the Party committee within the National People’s Congress.

Of course, this simply reflects the way Party authority is actually exercised in practice. But this new phrasing also makes a difference. The Chinese constitution itself only contains a single reference to the general principle of Party political control. Consequently, it was quite possible for Chinese activists and academics in the late 20th century to imagine that central invocations of concepts such as “ruling China according to law” might open space to build up autonomous legal institutions, while simply acknowledging the overarching political role of the Party as a general background principle. Liberal intellectuals could consequently question the role of political-legal committees in controlling specific legal actors, such as the courts, without necessarily being perceived as challenging Party rule. Such arguments now become problematic when confronted with a central policy restatement that bakes in Party control of day-to-day operations in a much more explicit manner.

The Decision similarly curtails other grey zones that some had used to promote reform. Party plenum documents from the late 1990s and early 2000s made references to bottom-up institutions such as elections and voting within their discussions of legal reform. [2] Those have been toned down, if not eliminated. Specific calls have been added for stronger Party political controls over the very actors who had attempted to use legal channels to press for deeper reforms. Lawyers are to be the target of greater political indoctrination (jiaqiang lüshi duiwu sixiang zhengzhi jianshe). Legal academics too, are singled out. The Decision stresses the need to construct a cadre of politically reliable legal scholars, conscious of the Chinese national character (zhengzhi lichang jianding … shuxi zhongguo guoqing de … faxuejia).

Return to the Past

Third, the plenum has begun the process of stamping the legal field with the “China Dream,” a core propaganda meme that has emerged since Xi Jinping’s 2012 accession. This doctrine represents a pivot back to Chinese history and traditional culture—heavily assailed by Communist leaders during the 20th century—as a foundation for Party legitimacy (see China Brief, March 20).

The Decision calls on Party authorities to “absorb the essence of Chinese legal culture” and promote “traditional Chinese culture to increase the moral content of rule-of-law efforts.” A similar tone was struck in the collective study session led by President Xi for Politburo members immediately prior to the plenum meeting, and which focused extensively on history and traditional culture. Summarizing the content of that session, Xi stated: “The appropriate road and methods for solving China’s problems can only be found within China itself” (Xinhua, October 13).

This marks a shift from the late 20th century. When Chinese leaders initially raised the concept of “ruling China according to law” to a core Party catchphrase, they gave officials and scholars wide scope to look outwards for models to consider in the search for solutions to the institutional challenges confronting China. Of course, Party plenum documents of the time included clear language that China would not adopt “Western” political institutions such as multiparty democracy or separation of powers. [3] But foreign legal models were fair game.

Both state officials and social activists capitalized on this space. In 1998, then-presidents Jiang Zemin and Bill Clinton even reached a formal agreement on expanding bilateral cooperation in the field of rule-of-law. [4] U.S. State Department funding for programs in China followed soon after. In December 2002, when former president Hu inaugurated the modern practice of regular Politburo study sessions with a collective session devoted to constitutional law, Chinese legal activists took note. Subsequent years saw Chinese scholars, lawyers and judges rely on the Chinese constitution, laws and legal rhetoric as tools to contest state actions, most notably with the 2003 challenge to the legitimacy of the controversial “custody and repatriation” detention system. Some drew on foreign legal sources for inspiration, including U.S. Supreme Court cases such as Marbury v. Madison and New York Times v. Sullivan (New York Times, November 25, 2005; Southern Metropolis Weekly, September 27, 2012, translated by Human Rights in China).

Now, this space is closing. Repression of Chinese rights lawyers has escalated. Figures such as Xu Zhiyong and Pu Zhiqiang have disappeared into state detention. Foreign-funded organizations have come under tighter scrutiny. And the Decision has strengthened ideological warnings regarding the applicability of foreign models, explicitly noting that China will “not copy foreign rule-of-law ideas or models.” Nor is this trend limited to law. Xi Jinping has issued criticism of “weird” modern architecture, and called on artists to take inspiration from traditional Chinese culture (Xinhua, October 15; People’s Daily Online, October 16). Censors have blocked foreign television programs such as the “Big Bang Theory” (Guardian, April 27). Textbooks are being altered to increase the content of classical Chinese poetry, while that devoted to modern social critics once praised by Party authorities, such as Lu Xun, is being reduced (Fazhi Wanbao, September 10; South China Morning Post, September 8, 2013). [5]

Conclusion

Both foreign and Chinese media have referred to the Decision in translation as promoting the “rule of law” (Xinhua, October 23; Economist, November 1). This is somewhat misleading. For most English-speaking mass audiences, this concept evokes ideas of bottom-up citizen rights and independent adjudication of legal norms. Neither of these is central to the Party aims expressed in the Decision.

In contrast, there is a third core meaning included in the English term “law” that is very much tied to how Party authorities seek to use the terms fa and yifa zhiguo. It is encapsulated in the concept of “order.” Improved, top-down centralized governance—this is what Party authorities seek. Party authorities are promoting legal reforms to improve their orderly governance of society. They are also promoting entirely extra-legal ones to improve internal Party governance. Many Western observers would not associate reforms to the secretive Party disciplinary system along with court reforms, but from the perspective of Chinese authorities, these are part and parcel of the same thing.

In summary, the Decision continues to promote technocratic legal reforms in China, subject to one-party political control. But it also takes clear steps to redefine the concept of “rule according to law” by neutering elements it deems dangerous, such as bottom-up participation and autonomous legal forces, in favor of a heavily top-down version, one increasingly being clad in classical Chinese garb.

Notes

1. Carl Minzner, China’s Turn Against Law, 59 Am. J. Comp. L. (2011).
2. See, for example, the 2000 and 2001 Party plenum statements, Zhonggong zhongyang guanyu zhiding guomin jingji he shehui fazhan di shiwu nian jihua de jianyi, issued October 11, 2000; Zhonggong zhongyang guanyu jiaqiang he gaijin dang de zuofeng jianshe de jueding, issued September 26, 2001.
3. See, for example, the 2001 Party plenum Decision, Zhonggong zhongyang guanyu jiaqiang he gaijin dang de zuofeng jianshe de jueding, issued September 26, 2001.
4. For an excellent recounting of the birth of this initiative, see Paul Gewirtz, The U.S.-China Rule of Law Initiative, 11 Wm. & Mary Bill Rts. J. 603 (2003).
5. Naturally, this is not to suggest that returning to China’s own past is in any way wrong. In fact, a careful, even-handed parsing of China’s own history for possible legal or institutional solutions to problems facing China today might be a useful corrective to much of the past hundred years, which has often emphasized blind importation of concepts from the West, whether liberalism or Marxism. But this is quite different from the creation of a new state-sanctioned, politically correct, nationalist historical narrative that is simply served up as a utilitarian tool to legitimate modern authoritarian rule.