Author: Peter Drysdale, East Asia Forum
A key pillar of President Xi Jinping’s program of political reform is entrenching the rule of law through developing the idea of ‘Chinese constitutionalism’, or the authority of the Chinese constitution. If he succeeds, one would imagine, the consequences for governance, and ultimately even the Chinese political system, will be profound. It is a change that would appear to some to require a fundamental cultural shift in the organisation of the state and the relationship between the Chinese people and the state — a shift from rule by those who wield power (‘the rule of men’), traditionally the hopefully virtuous emperor and his mandarins, but now, post-Mao, the officials of the Party-state, to rule bounded by laws and an overriding state constitution (‘the rule of law’) that serve the public interest at the same time as they protect the rights of citizens.
In October last year, the Chinese Communist Party (CCP) set the ‘rule of law’ (yifa zhiguo) as the principal theme of a plenary session for the first time. There was a good deal of scepticism about this move. Certainly it could not have been a move contemplated lightly because elevating the rule of law and establishing its independence and integrity potentially challenges the supremacy of the Party. The rule of law, properly conceived, would constrain the Party’s power. Yet unchecked power exercised without the constraint of codified laws and principles might well come to corrode the power and damage the legitimacy of the Party itself.
Indeed, one could observe, this had been the cancer gnawing away at the vitals of the Chinese Party-state — a cancer that increasingly threatened the legitimacy of the Party itself — in the lead up to the assumption of power by the current Chinese leadership. Untreated it might tear the state asunder. Without confidence in the legal system, many other things were likely to fall apart. Confidence at home and abroad in the operation of private markets increasingly depended on the rule of law. But there was a deeper issue. If the people had no faith in the rule of law and the abuse of official power in all its forms, and enjoyed no sense of fairness in their dealings with the state and with each other, the bonds of social cohesion will be threatened.
The distinguished academic, Yang Guangbin, in our lead essay this week, observes the ebb in the confidence of the Chinese people in the years after 2008 that led the ‘Party finally (to decide) to adopt the strategy of rule by the constitution or “Chinese constitutionalism”’.
When Xi ascended to the Chinese presidency, he faced a very complex political scene domestically. The Bo Xilai affair hung over the leadership transition ominously, underlining the need to deal with disquiet among the Chinese public over corruption and the relationship between the state and economic power. There was increasing unease within the elite about the direction that the Party was heading.
Political disorder blocked economic reform. The monopolistic position of state-owned enterprises was being entrenched, rather than weakened. Collusion between government officials and businesses was increasingly endemic, reinforcing special interest groups and exacerbating corruption. If Xi wanted to secure popular support, he needed to deal with state monopolies and money power; but he ran the risk of undermining his power base if he wasn’t prepared to see off threats from some very powerful interest groups that were becoming a more and more important feature of the economic and political landscape.
This is the context which has seen a remarkable consolidation of Xi’s political power and, with his new authority, the initiation of comprehensive reforms across the panoply of government institutions. The Party’s Central Committee has moved to deepen reforms to promote the ‘modernisation of the state governance system and governance capacity’. As Yang explains, Xi ‘established new institutions and authorities to expand his power and maintain control. These new institutions include: the Leading Group for Deepening Reform Comprehensively; the National Security Commission, which the former General Secretary of the CCP, Jiang Zemin, was unable to establish; and a leading group for cyber-security and information. Xi is in charge of all these new institutions. This means that all the institutions of the Party, State Council and military are now responsible to Xi and only Xi. As a result, Xi acts as the de facto Party Chairman — like Mao Zedong once did’.
‘In the past year, Zhou Yongkang, formerly a member of the Politburo Standing Committee, Xu Caihou, former Vice-President of the Central Military Commission, and Ling Jihua, the supervisor of party management for Hu Jintao, were all rounded up and indicted. Over 200,000 government officials have been investigated for corruption. The unexpected and unprecedented scale and strength of the campaign shows Xi’s determination to defend the Party’s rule’. The assault on Zhou broke what many considered an unspoken rule to not go after Party heavyweights or their families after they have retired from office. But if Party heavyweights are exempt, there would be no sustained confidence in the rule of law.
Meanwhile, Yang argues, the economic reform agenda which had stagnated has been revived. Xi’s anti-corruption drive has broken down vested interest groups, while Premier Li Keqiang has focused on the economy. ‘Likonomics‘ stresses the decisive role of the market over the state in resource allocation and Li is reshaping government regulation to give effect to this precept.
Among the noteworthy results that Yang reports are that the number of newly-established private enterprises which increased by more than 30 per cent in 2014. And while growth dropped to 7.4 per cent, the lowest in 24 years, employment expanded.
So far, Xi seems to have won widespread support in this campaign, and his leadership has attracted strong public backing. The consolidation of political power around his leadership has huge advantages in coordination of the affairs of the state in dealing with big issues that were threatening to get out of hand. The question is whether the personalisation of policy heft and the centrality of the Party are consistent with long term transformation of governance around the rule of law and constitutionalism which is his stated goal. In the short term, moves like lifting the control of local courts up a level to remove them from local interference is likely to deliver better outcomes to Chinese business confidence, and even some citizens. Taking the privileged down a peg or two is likely to reassure citizens, but the climate of fear that constrains worthy activists as well as venal officials creates an political environment antipathetic to the long term goal of effecting a major advance in Chinese political accountability.
The new emphasis in China on the rule of law is an important shift from the old reference points of clan and emperor — and relying on virtuous leadership to deliver fairness and justice for the people — to the idea of embodying the public interest in a constitution and to raising the position of the rule of law with its attendant rights and duties and civic responsibilities that must impinge upon the behaviour of leaders, however virtuous, as well as upon the behaviour of other and ordinary citizens.
Yang sees Xi’s grand design as evidence of his being ‘a far-sighted reformer rather than a politician satisfied with the temporary ease and support of his position’. Certainly, Xi is a most powerful reformer and has in many ways taken on the mantle of the Party. It will be difficult for Xi, and for the Party, to retreat: China’s economy is unlikely to flourish without the large-scale reforms on which it is apparently embarked, and these reforms will ultimately stand or fall on comprehensive entrenchment of the rule of law.
Peter Drysdale is Editor of the East Asia Forum.