The Fourth Plenum’s Rule of Law Rorschach Test

The Party’s Fourth Plenum last month laid out its vision of a “Socialist rule of law” by which it can more effectively govern China. Despite disappointment or resignation from many observers, the Brookings Institution’s Cheng Li expressed qualified optimism that the meeting had opened up the legal arena:

[… C]ritics in China and abroad were disappointed with the resolution of the meeting because it did not stress the supremacy of the constitution over the . Instead, it reaffirmed the party’s leadership of constitutional reforms, implying that the party will remain above the constitution. Before the plenum, a quote attributed to Xi Zhongxun, Xi Jinping’s father, circulated widely in Chinese social media. The story was that in the early 1990s the elder Xi, then vice chairman of the National People’s Congress, said that China would always be at risk of disaster if the leadership did not figure out where the supreme power of the country should lie: the party or the constitution. Two decades later, this fundamental constitutional issue, as well as the risk of disaster, remains unchanged.

Critics’ disappointment and the hesitation of CCP leadership aside, the Fourth Plenum has reopened much-needed public discourse on constitutionalism and governance in China. One can expect various forces in the country — from liberal intellectuals, human rights lawyers, and independently-minded legal professionals to Maoists, conservative party apparatchiks, and vested interest groups — in the coming years to contend on the legal front. [Source]

Hong Kong University’s Fu Hualing, on the other hand, commented last week that “there’s no room for civil society in this vision.” At South China Morning Post, Chang Ping argued that the Party’s reaffirmed monopoly on legal power undermines its proposed reforms:

[… T]he heart of the constitution concerns setting limits on state power. On this front, the decision has not only failed to make any progress but in fact appeared to be doing the opposite. It stressed the central role of the Communist Party in leading China; this is nothing new. But, for the first time, the decision said the party’s Political-Legal Committee must “persevere for the long run”.

The existence of the propaganda department signals we have no media freedom. Similarly, as long as the Political-Legal Committee “perseveres”, we can have no judicial independence.

For more than 20 years, Chinese people have lived through many slogans on the government of their country: “rule by morality”, the “three represents”, a “harmonious society” and the “Chinese Dream”. Many of these ideas are controversial, and some have become the butt of jokes.

Through it all, only two ideas are sincerely supported by the people: “market economy” and “ruling the country according to law”. Sadly, even today, the Chinese economy is hardly the embodiment of a free market, but is controlled by monopolies and the wealthy, while the has been bleached of its meaning by the rampant abuse of power. [Source]

Also at SCMP, New York University’s Jerome Cohen described the documents emerging from the Plenum as “a Rorschach test” within which the possibility of limited but significant improvements can be discerned.

Analysts have already spilled a huge amount of ink parsing these documents. Drawn to the many references to “rule of law”, in the sense of placing the government and the party, as well as everyone else, under the restraints of the constitution and legislation, at least one foreign commentator speculated that this might be a historical turning point, the equivalent in China’s millennial authoritarian tradition of King John’s reluctant grant of the Magna Carta to English nobles. Others, properly noting the even more prominent and contradictory emphasis on strengthening the party’s existing monopolisation of the , branded “socialist rule of law with Chinese characteristics” a political oxymoron. Some Chinese human rights lawyers, who have taken temporary refuge abroad from the regime’s ever greater repression, simply dismissed the fourth plenum as worthless sophistry.

[…] Yet we should take seriously the core rhetoric and pledges of the Central Committee, for they may initiate important, if limited and surely not historic, improvements in China’s legal system. Such changes can stimulate greater respect for and compliance with the law, particularly at lower levels of government, where that has been sadly lacking. Years ago, a shrewd Chinese friend warned me about the importance of distinguishing between central government theory and practice. He recited a well-known couplet that I translate as: “High-level officials put us at ease. Low-level officials do as they please.” [Source]

Cohen describes the Fourth Plenum vision, shaped by both Communist and traditional Chinese influences, as one of “law as the pre-eminent expression of central power,” rather than a limit upon it. (In the words of last week’s Fourth Plenum Decision, “Party leadership and Socialist rule of law are identical.”) According to this ideal, rule of law is a matter of compliance by the ruled, rather than constraints upon the rulers. China’s ambassador to the U.S. Cui Tiankai made some comments which highlight this difference of understanding in an interview with Foreign Policy’s Isaac Stone Fish. In the context of Hong Kong’s Umbrella Movement, “rule of law” appears almost synonymous with “order” or “social stability”:

The issue in Hong Kong is not democracy. It’s the rule of law, whether people should respect and maintain rule of law, or whether they should try to hurt it. Now, we see a situation where children cannot go to school, taxi drivers cannot take their passengers, small shop owners cannot run their businesses. People’s normal life and social order is disrupted. This is hurting the rule of law in Hong Kong. Without rule of law, there’s no democracy. [Source]

Cui also commented on American protest at Uyghur scholar Ilham Tohti’s conviction for separatism:

Our American friends very often tell us that we should strengthen the rule of law in China. Then, the next day, they come and tell us, “You should twist your law. You should bend your law to give some special treatment to any particular individual.” This is really contradictory.

If you really want to have rule of law in China, then you should respect Chinese laws. If someone is punished by law or if there’s a ruling by the law, you should respect it. If you give people the impression that you can disregard the law if the has some special interest in any particular individual, that will not help the rule of law, neither would it help human rights in China. [Source]

To Cui, in other words, respect for rule of law means uncritically accepting a court’s verdict despite its questionable jurisdiction and the suspicion of politically motivated charges alleging beliefs the defendant vocally opposed, after a detention plagued by abuses and a prosecution riddled with irregularities. The objection he raises to such concerns is not that they are unfounded, but that they are inappropriate.