On the Legal Reforms that Will, and Will Not, Come from the Fourth Plenum

The Fourth Plenum of the Chinese Communist Party’s 18th National Congress kicked off two days ago in Beijing. In and of itself, any Fourth Plenum usually deserves attention; the fourth session of a National Congress (there are seven total for each 5-year cohort), historically plays a significant role in “directing party governance.” Beyond that, though, this year’s plenum is especially noteworthy because, for the first time, its central theme is devoted to the country’s legal structures, including the Constitution and the courts. More specifically, this year’s topic is the “rule of law” and “ruling the country according to law” (in Mandarin: fazhi 法治 and yifazhiguo 依法治国). It's a pertinent topic. It’s not news that China’s legal and law enforcement structures have been in tumult as of late. There is no better microcosm of this instability than the demise of Zhou Yongkang. Before his fall in 2013 amid allegations of corruption and abuse of power, Zhou was a member of the 17th Politburo Standing Committee, the highest decision-making body in the country, and the head of the Central Political and Legislative Committee, the body that oversees all of the country’s legal organs and law enforcement agencies. He has the dubious honor of being the most powerful official in China ever to be investigated for corruption. The same anti-corruption drive that gobbled up Zhou and his family was instigated by President Xi Jinping in a stated attempt to improve the country’s rule of law and lessen popular opprobrium over widespread profligacy by Party officials. In announcing the drive, Xi warned that neither “tigers” nor “flies” would be immune to the decrees, a promise borne out by the investigation of more than 40 Party bigwigs, including Zhou. Its implementation has been a bit draconian, but observers hoping for more liberal reforms were mollified in part by several speeches Xi gave stressing the importance of rule of law and the Constitution. One speech in 2012, in particular, raised hopes of a drift towards constitutionalism by mentioning the possibility of “ruling the country according to the constitution” (in Mandarin: yixianzhiguo 依宪治国). The legal system has been reformed in the last few years as well; use of the death penalty has been roughly halved and the country has new procedures for deciding on its use; a new Criminal Procedure law was enacted, which provides greater protection for defendants; government transparency has increased; a five-year program has promised increased judicial independence and professionalism; and “re-education through labor” has been abolished. In some select parts of the country, court bureaucracy has been simplified and judges are allowed to make judgements without approval from the chief justice of the court.  Despite all of this, any attuned observer knows the PRC is not on its way to constitutional democracy. Far from it; the current Xi regime is one of the most repressive since 1989. The concepts of “constitutional democracy,” “civil society,” and “universal values” all remain banned, the first of which is denounced as a Western construct and a threat to the Party’s leadership. And therein lies the rub: when outside observers translate fazhi as “rule of law,” they are missing the point; when they translate yixianzhiguo as “constitutional rule,” they are also missing the point. As Josh Chin of the Wall Street Journal points out, the meaning of “rule of law” is very different in China than the Chinese idea of “rule by law” or “ruling the country according to law” (the same can be said of “constitutionalism” and “ruling the country according to the Constitution”). The former is a Western concept, encapsulating the idea that nothing is above the law, that the law exists independent of any other artifice in exacting judgment. In contrast, “rule by law” and “ruling the country according to law” internalize the existing, if awkward, constitutional structure of the PRC, which posits that the document is the country’s “supreme legal authority” but is also “under the leadership of the Communist Party of China.” “Rule of law” is a dangerous intermediary leading to Western political structures, such as a wholly independent judiciary, whereas “rule by law” allows for a rigorous law enforcement regime that operates under a legal basis formed in consultation with the Party. The upcoming Plenum then is not meant to begin the shift to “rule of law” in China, at least not in the “Western,” theoretical sense of the phrase. Rather, the CCP intends to strengthen the legal system and make it more independent of local officials, which has a few benefits. First, it reduces judicial corruption at the local level, which infuriates public opinion and poses a threat to the Party’s legitimacy. Second, it centralizes law enforcement power, which gives more leeway to the Xi regime in conducting its programs. Third, as Carl Mizner writes, it standardizes the ongoing corruption probe, which institutionalizes Xi’s rule and could improve flagging morale among public servants. While Xi may say that he wants courts to “put power within the cage of regulations” (“把权力关进制度的笼子里”), what he really means is that he hopes to restrict the government’s power a little bit in order to conserve most of it. The top objective remains social stability and the the preeminence of the Party. As an editorial today in the People’s Daily so eloquently puts it:

Taking “rule by law” as reform’s ballast stone is an intrinsic requirement for a China in transition. One of the fundamental values of law is its stability. For the unceasing and rapid social changes that contemporary China faces, this is especially important. This kind of stability not only embodies the idea that policy formation cannot make frequent or unpredictable changes, but also the idea that determining policy must be in accordance with the law. It is also a stabilizing force for social order and values in a society that is transforming quickly. “Rule by law” is the lighthouse that guides the unchanging course of the ship of China’s reform, which is sailing amid wind and rain. It is the dam that prevents the surge of the river of a market economy from flooding. It is the strong guardian that protects the achievements of the past thirty years of reform from eroding away. Within the framework of “rule by law,” we can manage any kind of problem or reform. Seeking the maximum consensus under “rule by law” is the guarantee that China’s reform will continue forward, and is also the place where the well-being of all the people resides.

In light of this, one should only expect small reforms to emerge from the Plenum. Still, some argue that any legal reforms and state restriction in the PRC should be celebrated, and that the very mention of “rule of law” or “rule by law” as the theme of the meeting is progress in professionalizing the country’s lackluster legal system. Others, including Andrew Browne of the Wall Street Journal, posit that the prospect of legal reforms may induce expectations among the general populace that, “if disappointed, could exacerbate the very social tensions that Mr. Xi is seeking to calm.” Perhaps more ominously for liberal reform, Beijing’s attempt to define what “law” is and to place it in terms of “time-honored imperial concepts,” instead of modern Western ones, could eviscerate “some of the dangerous ideological pressures that have crept into China over the recent years” at their source.