China’s rule of law plan is for real

Author: Rogier Creemers, University of Oxford

Xi Jinping has recently published a book of maxims and instructions concerning ‘the comprehensive advancement of Socialist rule of law’. This is another strong political signal that the top leadership has committed itself to a process of legal reform. While it is tempting to dismiss the moves as mere ideological posturing, China’s intentions for rule of law are genuine.

Paramilitary police patrol near the headquarters of the Bank of China in Beijing, 7 March 2015. The Xi administration has implemented a flagship policy to thoroughly clean up corruption in China. (Photo: AAP).

The book follows in the wake of the 4th Central Committee Plenum in 2014 and the promulgation of the Four Comprehensives slogan. The latter lists rule of law as one of the four absolute priorities for the Chinese government. The current leadership sees legal reform as an indispensable step forward in changing the structure of the Chinese state. But to gauge the potential impact that these reforms might have, one needs to understand what the term fazhi — the Chinese word for ‘rule of law’ — means in party parlance.

Fazhi does not entail the creation of a liberal state. Legal norms do not exist outside of and above the party-state structure. In the 20th century, the Chinese Communist Party (CCP) produced a number of constitutional documents, which paid lip service to liberal ideals such as free speech, free association and democratic representation. But, in practice, these provisions have remained dead letter. And the application of foreign legal reform models is rejected explicitly.

The reason for this can be found in CCP ideology. The CCP still conceives its core task as leading the rejuvenation of the Chinese nation. It should be empowered to take any and all measures necessary to transform the economy and society, and to drive progress. Members of senior party circles should take the central task of parliaments in liberal democracy — deliberating and defining social and economic means and ends.

The CCP aims to ensure citizens and interests groups have ‘correct’ views on modernisation and progress, and that they conform to them. The party alone has the correct intellectual approach and policymakers take pains to stress that decisions have been taken on a ‘rational’ basis for all important policy documents. All legitimate interests and objectives can be harmoniously combined to come to optimal results. Conflicts and tensions in society are not inevitable but are the consequence of mistaken self-interests.

A significant objective of the fazhi agenda is to strengthen control over the party-state apparatus. The CCP has consistently refused to countenance independent and external oversight, such as free media.

But the party has not been able to avoid intractable corruption and insubordination at the local level. This has often been described with the cliché that the ‘mountains are high and the emperor far away’. The Xi administration has implemented a flagship policy to thoroughly clean up corruption. Strengthening legal control will consolidate the results of the anti-corruption campaign. For instance, the CCP Discipline Inspection Committee has seen a recent expansion of powers. This suggests that it will be changed into a second supervisory channel, not wholly dissimilar to compliance departments in large enterprises.

The fazhi agenda is also aimed toward enhancing social control. In the eyes of the leadership, there is a profound lack of trust in the Chinese economy and society, leading to a sprawl of negative phenomena, including swindles, extortion, blackmail and unlawful trading. This impression has been exacerbated with the growth of the internet, which made many of these issues visible to outside observers. The law, together with technological surveillance and behavioural tracking tools, is deemed necessary to protect ‘the people’ against miscreants.

The Xi administration has curiously dedicated some attention to the Chinese Constitution, going as far as to institute an annual Constitution Day. But the administration’s first year was characterised by a vociferous political debate on the role of the Constitution in governance. To the leadership, the most important part of the constitution is the preamble, which mandates the party’s leading role and the socialist system. But the rights-based language it also contains may continue to provide a repertoire of meanings for opposition and dissent.

While it is rather easy to take a cynical stance with respect to the Chinese Communist Party, its leadership seems committed to enhancing good governance and the welfare of the Chinese population (at least in the manner it defines these terms). China’s legal reforms will not pursue the development of a legal system premised on individual autonomy and representation. Rather, the law is a tool for progress towards outcomes determined at the top. Whether or not these efforts are successful, only time will tell.

Rogier Creemers is a research officer in the Programme in Media Law and Policy, Centre for Socio-Legal Studies, University of Oxford.