China's efforts to improve Rule of Law

At the Fourth Plenum of the Communist Party of China’s Central Committee (CPC CC) held from October 20 to 23, a rather unusual theme was chosen to be discussed at length. This is the first time in China that a sensitive topic like the “Rule of Law” was taken up. This has led to many speculations. Is China looking at a totally independent judiciary? What would be the red lines for the legal system? And what are the real motives for such a move?

The timing of the Plenum with such a theme is also significant. For more than a month, protesters in Hong Kong have been clamouring for the resignation of the Chief Executive and demanding that the democratic foundations of Hong Kong’s elections should not be diluted. The Beijing authorities have declared the protests as illegal and are in no mood to give in to the protesters.

The theme has also to be seen in the context of Beijing’s attempt to deal with corruption which is considered to be the single greatest threat to the power of the Communist Party. President Xi Jinping’s anti-corruption drive has already ruffled many feathers. Contrary to the normal Chinese practice of not going after senior retired officials, the former powerful Security Chief Zhou Yongkang has been brought under investigation on corruption charges. The Party wishes to have some standard procedures for dealing with such cases. What the Plenum was aiming was to have some clarity on the issue.

Rule of Law vs Rule by Law

The term “Law” in Chinese is tricky. In Mandarin, it is “fazhi”. It could mean “law” and also “rule”. The term was coined in the 2nd or 3rd century BC by the founders of the Legalist School who were opposed to the Confucius School. The contest was between a personalised law as opposed to an institutionalised law. The debate today about “fazhi” is whether it is “rule of law” or “rule by law”. The two have totally different implications. The official Chinese media, however, was careful enough to use a longer phrase for the theme, namely “ruling the country according to law”. Despite this, the ambiguity remains.

Generally speaking, the CPC has always acted on the principle of “rule by law” rather than on “rule of law” as interpreted by Western legal systems. That is to say that law is an instrument of the Party to govern and it certainly is not above the Party. If there is one obsession which China has today, it is social stability and the CPC has held the view that the central role of law is to ensure it. It is convinced that what China is today is mainly because of the social stability of the country for the past four decades after the Cultural Revolution. There is no intention of risking instability by giving greater prominence to law. Also for China, law has always been culture specific.

However, that is not to say that there has been no influence at all by ideas from outside. Over the last two decades, the Chinese legal system has been adopting several ideas from abroad in a piece-meal manner. There has been a limited range of legal and judicial reforms. For eg. the number of death penalty cases has been cut by half; a new Criminal Procedure Code is in place and the notorious practice of education through labour has been abolished. The idea of the Fourth Plenum was to go further on this path to make the legal and judicial systems more professional, efficient, transparent and institutionalised.

The exercise was, by no means, expected to create an independent judiciary or make the legal system a check on Party’s power. President Xi is known to be a hard-liner on Party control. The important lesson that the CPC learned from the so-called Arab Spring was to maintain a tight control in governance. Xi has overseen increased action against dissidents, critics of the regime and opposition in the media. This is reflected in the situation in Hong Kong which was incorporated into PRC with the specific commitment to the principle of “one country-two systems”.

There is also a cynical view that the exercise by the Plenum is another step in the centralisation of power by President Xi. China watchers have noticed the systematic accumulation of powers by Xi in the last two years. It is generally believed that Xi is the most powerful Chinese leader since Deng Xiaoping. Even Deng at the height of his power did not hold so many titles including those of the General Secretary of the Party and the President of the PRC.

What was the final outcome of the Plenum? As expected, it recommended a number of measures to bring in a more predictable and transparent legal system without any reduction in the Party’s control. The courts will now have less interference from local officials. Their administrative issues will now come under the Provincial Governments. The judges will have greater freedom, better pay and more professional training. There will also be a better rule-based approach in prosecutions. The courts, however, will be firmly under Party control. A statement issued at the end of the Plenum said that “Fairness is the lifeline of rule of law. Judicial injustice is fatally destructive to social fairness.” It further added that “Socialist rule of law must uphold the Party’s leadership and Party leadership must rely on Socialist rule of law.”

Some effects of the Plenum are already visible. The Standing Committee of the National People’s Congress (NPC) has made it simpler for citizens to sue the Government by amending the existing law. This will help ordinary people involved in disputes with the government over land acquisitions, housing compensations or commercial activities of the government.

(H.H.S.Viswanathan is a Distinguished Fellow at Observer Research Foundation, Delhi)

Courtesy: ORF