Laying down the law at the Communist Party plenum

Author: Carl Minzner, Fordham Law School

On 29 July, Chinese authorities announced the long-expected news that former security tsar and Politburo Standing Committee member Zhou Yongkang is under investigation for Communist Party disciplinary violations. Simultaneously, it was revealed that the party plenum in October would — for the first time — focus on ‘ruling China according to law’ (yifa zhiguo).

Of course, Chinese authorities have little intention of building up legal institutions as a truly independent check on party power. Like his predecessors, President Xi Jinping remains committed to one-party rule. He has looked at Tiananmen Square, he has looked at the Arab Spring, and he has drawn his conclusion: weaken the political control of the Communist Party, and you jeopardise the entire edifice. Precisely this rationale is behind the repression Beijing is now directing at a wide range of legal activists, including figures such as Xu Zhiyong and Pu Zhiqiang.

But the plenum will almost certainly confirm some of the high-profile legal reforms launched over the past two years. Chinese authorities have formally abolished the controversial re-education through labour (laojiao) system used to sentence prostitutes, drug users and political dissidents to lengthy detentions without trial. Judicial transparency is being strongly emphasised, with some provincial court authorities striving to make all of their verdicts available online. And central authorities are reviving concepts of judicial professionalism that had gone into eclipse during the later years of Hu Jintao’s administration. One example is the attempt to separate out legal disputes and court cases from the poorly-defined petitioning channels many citizens use in practice to resolve their disputes. And they have attempted to insulate judges from interference by local officials. Experimental reforms in six provinces remove control over the funding and appointment of local judges from the hands of county authorities, vesting it instead with provincial courts.

Such changes appear aimed at fashioning the Chinese judiciary into a more institutionalised tool of party governance. It is not clear how effective this will be. Hu Jintao-era policies emphasising weiwen (social stability) at all costs continue to limit the ability of courts to decide cases according to law (or even party decree), and steer them instead towards doing whatever it takes to stave off impending protests — including simply paying off disgruntled parties. And local judges themselves flag serious concerns regarding some of the reforms. As one put it, ‘if local officials no longer bear any direct responsibility for us, the next time we need their help — executing a verdict, finding housing for judges — they are likely to simply turn us down, or tell us to run to the provincial capital. How are we supposed to operate then?’

A more important question is whether the party plenum will set out a new orthodoxy with regard to the concept of law. Sweeping policy frameworks announced at such meetings affect the direction of government work for years into the future. For example, the recent crackdown on microblogging services such as Weibo and Weixin is a direct outgrowth of the 2011 party plenum statement vowing to strengthen control over social media sites.

If the 2014 plenum statement on law were to set out a new orthodoxy regarding law, what might it look like?

First, it is extremely likely to import language from recent Communist Party propaganda efforts (that is, the ‘China Dream’) that emphasise China’s cultural distinctiveness. Similar lines have already appeared elsewhere. Several months ago, Xi Jinping commented to the Greek prime minister, Antonis Samaras, ‘your democracy is the democracy of Greece and ancient Rome, and that’s your tradition. We have our own traditions’. Naturally, this would help ideologically cage the efforts of Chinese liberals who seek to push for deeper reform based on Western legal models and international standards (as was the case with efforts in the late 1990s to bring China into compliance with WTO norms).

Second, it is probable that central authorities will confirm a heightened role for the Communist Party’s own extra-legal disciplinary system. This apparatus has already been bureaucratically strengthened as part of an intense anti-corruption campaign, in part as a tool to remove supporters of Xi’s rivals. Expect to see the definition of ‘ruling China according to law’ appropriately stretched.

Last, it will be worth watching to see how Chinese authorities attempt to reconcile recent judicial reform efforts with their increasing invocation of extra-legal mechanisms taken straight out of the 1950s and 1960s. The past year has seen a parade of televised public confessions by social media celebrities, foreign corporate investigators and alleged terrorists — rather than statutes and trials — to send signals to society at large. Language regarding ‘confessions and self-confessions’ (piping yu ziwo piping) has re-emerged in party campaigns. Might a central reinterpretation of what it means to ‘rule according to law’ grant space to develop such methods further?

Carl Minzner is Professor of Law at Fordham Law School. Follow him on Twitter @CarlMinzner.

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