Party Document Lays Out Vision for Role of Law (Developing)

On Tuesday, the Party Central Committee unveiled the fruit of its rule-of-law-themed Fourth Plenum meeting, the Decision Concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward. This builds on last week’s Official Central Party Communiqué, which provided a broad overview of Party leaders’ conclusions. Both documents were swiftly translated into English by China Copyright and Media’s Rogier Creemers, with contributions on the Decision from China Law Translate’s Jeremy Daum.

The Decision continues the resurgence of Xi Jinping’s early constitutionalist rhetoric, but expresses a vision of rule by law, not of law in the Western sense. It warns that while China should “learn from beneficial experiences in abroad, […] we can absolutely not indiscriminately copy foreign concepts and models.” (See more on “nipping this trend in the bud” from China Media Project.) While conceding that “governance according to the law requires that the Party governs the country on the basis of the Constitution and the laws,” it states that “laws are important tools to rule the country,” rather than a framework within which to govern. Elsewhere, it describes the work of “perfecting legislative structures” as a matter of strengthening Party leadership. “Party leadership and Socialist rule of law,” it asserts, “are identical.”

But policies emerging from the Plenum could still rein in violations and abuses of the law by lower-level authorities. Moves to shield courts from interference by local officials, for example, are set to expand. The document also offers the prospect of some legal foundation for efforts to battle corruption, which have for the most part proceeded on a pointedly extra-legal basis.

In any case, the test of new policies will lie in their execution, not on paper, or in gestures like an oath of loyalty to the constitution or a new holiday (December 4th) in its honor. From Reuters’ Sui-Lee Wee:

“We keep on talking now about ruling the country in accordance with the constitution, but I think we should not overdo this propaganda,” said Zhan Zhongle, a law professor at Peking University.

“These things are just formalities, the more important bit is the implementation. You know, China is a country that shouts slogans louder than any other country.”

[…] Since he took office in March 2013, Xi, who has a doctorate in law, has vowed to put “power within the cage of regulations” and waged a war against corruption, winning over many ordinary people. This year was the first time the party made “governing the country by law” the focus of the plenum.

[…] It is uncertain how much of an impact the plenum’s policies will have. Laws are often not enforced and can be abused by the police. Full details of the reforms will likely be unveiled in coming months. [Source]

Many observers, Wee reported last week, are pessimistic. The Brookings Institution’s Cheng Li said the scheme outlined in the Communiqué was “not a landmark […], certainly it’s not a philosophical or ideological change,” though he was reassured that it left “a lot of room for further debate.” Beijing-based scholar was more dismissive, saying “there’s nothing new there, it’s no different from 18 years ago. My hair has turned white while waiting for rule of law to be implemented.” Respected Peking University legal scholar He Weifang told The Financial Times ahead of the Plenum that he had already given up on promises of legal reform. “I have lost all hope and I just feel numb now,” he said. “In fact recently I have just been travelling around China visiting friends and getting drunk.”

Updated at 18:25 PDT on Oct 29: On his China Law Prof Blog, George Washington University’s Donald Clarke assesses the Decision’s various proposals, filing them as either positive steps forward (particularly on judicial reform), “meaningful but minor” changes, empty rhetoric (including 108 pledges to strengthen things, and 79 to perfect others), or areas of concern. He also notes some curious omissions.

The big-picture summary is that the Decision contemplates no fundamental reform in the relationship between the and the Party. It is clear that institutionally speaking, the Party will remain above the law. At the same time, the Decision does contemplate some genuinely meaningful (and in my opinion positive) reforms. It also has a lot of stuff that might look meaningful but isn’t. […]

[… O]bedience of officials to law is presented throughout as a kind of internal Party policy goal: this is something that Party members should do, and officials will even be scored on it (Section 7, Subsection 3). Those who have a “special privilege” mentality will be criticized and educated, and if necessary removed from office. But because the Decision contemplates no changes in the relationship between the legal system and the Party, the system in which powerful officials can override law if they wish to remains comfortably in place. The Decision just wants them to wish to override it less often.

[…] The Decision has some welcome language on civil rights. It specifies the principle of the presumption of innocence (疑罪从无 yi zui cong wu: literally, something like “when there is doubt about the crime, err on the side of finding no crime”). It also endorses the principle of exclusion of unlawfully gathered evidence. I put both these items in the “meaningful but minor” category because I don’t want to say they’re meaningless, but at the same time we have heard this before and problems persist. [Source]

Clarke raises a particular objection to proposals to shield proceedings from outside influence by restricting media reporting. South China Morning Post’s Keira Lu Huang reports consternation among lawyers and legal scholars at similar secrecy rules under consideration by the National People’s Congress Standing Committee, which is reviewing draft amendments to China’s Criminal Law.

The restrictions refer to three types of cases – juveniles, personal privacy and those involving state secrets – that are “privately tried” behind closed doors.

Lawyers say they will be banned from releasing information about the cases, which could result in more miscarriages of justice.

According to a draft amendment on “obstructing judicial administration”, it would be a crime if defenders, appointed agents or other participants in a trial leak information that should not be known to the public” that which can result in mass media coverage or “other severe consequences” of trials under way.

[… B]ecause of frequent miscarriages of justice, mainland lawyers often chose to post information on social media or talk to the press to seek support from the public or pressure authorities to handle cases fairly. [Source]

Also at South China Morning Post, Andrea Chen highlights a People’s Daily article which reiterates the Decision’s claim that “Party leadership and Socialist rule of law are identical.” The two go hand in hand, quoted scholars argue, because the latter is a codified expression of the former.

“Rule of law” was listed as the theme of the party elites’ gathering last week. But scholars have been arguing the theme in China is different from the Western concept that no person, organisation or government agency, including the ruling party, is above law.

“It is wrong to say ‘rule of law’ contradicts the party rule,” the article quoted Wang Zhenmin, the dean of the Tsinghua Law School, as saying. “Law in China is the codification of the directives of the party.”

[…] The legal reform plans rolled out at the fourth plenum would further advance the party’s rule, Wang told the paper. From now on, party leaders must have their directives written in law [passed by the National People’s Congress] before they could rule the country

But the basis of all reforms in China, Xi said last night, “is to persist the ruling of the party”. [Source]

Updated at 23:50 PDT on October 29: Rogier Creemers has completed a translation of ’s Explanation concerning the ‘CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward’ at China Copyright and Media. Meanwhile, the site’s translation of the Decision itself is now posted at Law Genius with annotations from Donald Clarke, who invites input from others.

Updated at 00:20 PDT on October 30: In his analysis of the Plenum documents at China Real Time, UC Berkeley’s Stanley Lubman focused on proposals to boost judicial independence by elevating local courts’ management to the provincial level and increasing transparency and accountability.

While the documents recognize the importance of independent courts, one particularly noteworthy paragraph in the communique demonstrates the determination of the party to maintain dominance over the legal system. In order to promote governing according to law, it says, the party “must forcefully raise the ideological and political quality, professional abilities and professional ethics of rule-of-law work teams.” Such teams, it says, should be loyal to the party, the country, the people and – last in the list – the law.

The notion of work teams harkens to the Mao Zedong era, when the party assembled groups of well-indoctrinated personnel with the specific aim of implementing specific party policies. Land collectivization in the 1950s and the Socialist Education Movement in 1964, among other campaigns, relied for their success on work teams, which were tasked with mobilizing lower-level officials and the masses. Aside from references to teams that have been sent to villages to quell protests over illegal land seizures, the term has rarely been used with reference to legal topics. [Source]

China Media Project’s David Bandurski noted another Maoist echo in a People’s Daily commentary on the Plenum:

A cursory reading would suggest the piece is what it seems to be — an anthem to “rule of law” (法治) that categorically rejects its evil twin, the autocratic “rule by man” (人治). In the People’s Daily Online version, a single sentence is bolded: “Nevertheless, some leading cadres are still obsessed with rule by man. In their eyes, legal process has too many limitations, and they think it’s better and more effective to deal with certain ‘defects’ by applying the flexible methods of rule by man.”

But if you think this is a simple struggle between the forces of light and dark, read more carefully.

The second paragraph of the piece praises the “Fengqiao experience” (枫桥经验), which as CMP director Qian Gang explained a year ago — when Xi Jinping surprised many by raising the specter — is a relic from one of the darkest chapters of contemporary Chinese “rule by man” under the Communist Party. [Source]

With all the rhetoric on how the legal system can serve the Party, Lubman also notes, there is little room left over for how it can directly serve the public:

It is disappointing that responsibility for initiating public interest litigation (as in such matters as product safety and environmental issues) is mentioned only in passing. The communique calls for establishing a prosecutorial system for such cases, rather than enlarging the right of classes of litigants or NGOs to sue. As Fu Hualing of Hong Kong University has noted, “There’s no room for civil society in this vision.” [Source]

Updated at 00:46 PDT on October 30: Eventual outcomes from Plenum policies on rule of law remain uncertain, but the past two weeks have seen some ill omens. Reuters’ Sui-Lee Wee reported on Monday that as the Party declares a national holiday in honor of the country’s constitution, a filmmaker faces up to five years in prison after making a documentary about it:

Shen Yongping will be the first person prosecuted for documenting China’s constitutional history in a film called “100 years of constitutional governance”, his lawyer, Zhang Xuezhong, told Reuters in a telephone interview on Monday.

[…] The film is about “the Chinese people’s pursuit of constitutionalism from the time of the Qing dynasty till the present day, and their failed experiences,” Zhang said, adding that he will argue the eight-episode documentary is not illegal.

[…] “The arrest of Shen is a signal from the government,” said Maya Wang from the New York-based advocacy group Human Rights Watch. “Through these arrests, the government is making clear that the ‘rule of law’ should be understood as an instrument for the state to maintain its monopoly of power, not as a force to rein in arbitrary state power.” [Source]

Caixin’s Zhou Dongxu, meanwhile, described a sentencing rally held in Hunan three days before the Plenum began, and 26 years after the practice was banned:

The defendants, who were convicted in earlier trials, were taken to a public square for sentencing on the back of trucks that appeared to have special bars attached to keep them from fleeing. They were guarded by men in uniforms and wore placards around their necks giving their names and the crimes for which they were convicted.

A crowd of 5,000 people watched their sentencing, a local television station said. A video clip on the mass sentencing, which appeared on the local government’s website, has been removed.

[…] The events were not intended to be real court proceedings as much as events to burnish the image of local leaders, [Nankai University professor Hou Xinyi] said. “The judicial system cannot really decide many things anyway,” he said. [Source]

Updated at 22:13 PDT on October 30: Caixin editor Hu Shuli offers praise for “the leadership’s sincerity in its wish to improve the legal system,” but stresses that authorities should adhere to both the letter and the spirit of the constitution:

Too often, the government makes decisions that plainly flout the spirit if not the letter of the constitution. Thus, the leadership is right to stress the importance of its implementation.

[…] We need more than a collection of laws to realize constitutional rule. More importantly, we must honour the spirit of the constitution.

Xiao Yang, a former president of the Supreme People’s Court, once described the document as a declaration of rights, a treasure that safeguards the rights of a citizen. At the same time, it regulates and limits the powers of the state. Thus, the spirit of the constitution is to strike a balance between state powers and citizen rights, to ensure the state does not infringe on the basic rights of the people.

[…] More than three decades after the party’s 11th Central Committee affirmed the importance of the rule of law at its third plenum, China must work harder to realize a system of law based on the constitution. This is the way to win the people’s trust. [Source]

A leader and article in The Economist suggested that the focus on rule of law could bring real benefits to China, but expressed the widespread suspicion that it will be less a shield for the people than a sword for the Party:

Officials will now have to swear loyalty to China’s constitution. There is to be a new “National Constitution Day”. Schools are to teach its importance. The idea is to make it clear to errant officials that, no matter what they may think of ordinary laws and regulations, there is a big one they cannot ignore. The constitution, for example, enshrines property rights. Of the many thousands of “mass incidents” of unrest each year in rural China, 65% relate to disputes over the (often illegal) seizure of land by officials. Mr Xi wants to make it clear that their behaviour is not just illegal but also unconstitutional. That sounds scarier.

[…] Mr Xi has been presiding over the most sweeping crackdown on dissent that China has seen in years. He has clearly felt no compunction about using the law to do so, and it seems highly unlikely that he intends to use the constitution to check the power of the party itself. Yet he is clearly a brave leader who is prepared to take risks. If he really wants to clean up the system and defuse public anger, he should give Chinese citizens the rights enshrined in the constitution. It is the only way to bring about the “extensive and profound” change he has promised them. [Source]

[…] A decade ago the constitution was amended to include explicit protections for human rights and private property. Citizens with grievances briefly took heart and attempted to use these clauses to challenge official abuses of power. They were ignored, roughed up or arrested. Under Mr Xi, Chinese academics and journalists have been banned from expressing support for “constitutionalism”: a term that the party sees as a codeword for Western democratic values.

[…] Mr Xi’s aim appears to be to use the constitution to rein in local officials whose routine flouting of the law causes public anger and many thousands of protests every year. By making them swear to uphold the constitution, he is trying to make clear that they are not above the law when it comes to such matters as property rights. He does not expect them to ignore restrictions on demonstrating; the party has never acknowledged a contradiction between such laws and the constitution’s guarantees. [Source]

A third article gives an example of the current bleak state of property rights protection, in the illegal demolition of a Beijing guesthouse that had operated continuously for 60 years. It also notes a still more dramatic demonstration in Yunnan last month, where a clash over a land dispute left nine dead. Following the violence, 21 villagers and construction workers have been arrested, while 17 officials have been punished.

Updated at 01:35 PDT on October 31: Reuters’ Ben Blanchard and Sui-Lee Wee report Chinese authorities’ explanation for the lack of an anticipated announcement on former leader Zhou Yongkang’s ongoing corruption probe from the Plenum.

Jiang Wei, head of the Office of the Central Leading Group for Judicial Reform, told reporters that the case against Zhou “strongly reflects our attitude and determination to punish corruption”.

[…] “You asked about why there was no mention of the Zhou Yongkang case at the Fourth Plenary Session, that is because Zhou Yongkang no longer serves on the central leadership, so this plenary session did not make a decision on his problem,” Jiang said.

After the media conference, an aide accompanying Jiang said: “No comment, no comment” in English as a Reuters journalist attempted to ask more about Zhou’s case. [Source]

Within the plenary purview or not, Zhou’s case illustrates a basic reality of its “Socialist rule of law.” As Andrew Jacobs and Chris Buckley reported at The New York Times this month, he and many others have disappeared into an opaque internal Party system which has no foundation in national law and in which torture and other abuses are common. The Plenum documents promise accelerated work on anti-corruption law, but make clear that the Party will still police itself: “Governance according to the law requires that the Party governs the country on the basis of the Constitution and the laws, and requires that the Party manages the Party and governs the Party according to intra-Party regulations.”

At China Real Time, Yiyi Lu describes a flood of lurid investigative reporting on officials brought down by the anti-corruption campaign. The crackdown would be more effective, she suggests, if the Party were to relax its monopoly on internal investigation and discipline and allow the legal system, press, and public to take part.

The vivid stories flowing out of Shanxi are satisfying to a Chinese public that is weary of corruption, but the circumstances of their publication – always after the suspects have been placed under investigation by the party – highlight the limited role the media and the public play in rooting out corruption. For all its size and power, the party needs help policing its own.

China’s corruption czar, Wang Qishan, has argued for the need to institutionalize the country’s antigraft efforts. The party’s new focus on legal reform, discussed at a plenary meeting of top leaders in Beijing last week, has been cast as one way to do that. Having more respect for the law would certainly help curb corruption and abuse of power, but until the public is given the right to supervise the government, tigers are likely to continue roaming the country. [Source]

More analysis and background will be posted below as it appears.

October 29, 2014 2:30 AM
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Categories: Law, Politics, Society