Written by Zheng Yongnian and Shan Wei.

In October 2014, at the Chinese Communist Party’s (CCP) Fourth Plenum of the 18th Party Congress, China’s most powerful leaders passed a reform plan on the legal system. This plan entitled Decision on Several Important Issues Regarding the All-Around Promotion of Ruling the State According to Law vows to build the ‘rule of law’ (fazhi) in the country. This is unprecedented in the history of the Party’s plenary sessions.

Three major reform initiatives were proposed in the Decision. First, local Party cadres’ authority over the legal system will be weakened; Beijing is to establish circuit courts and cross-region courts to sever the connection between judges and local political interests.

Second, interventions in legal affairs by Party cadres and government officials at different levels will be recorded, and all consequences deriving from their intervention will be borne by them during their lifetime.

Third, professionalism will be promoted in the judicial system. All judges must be law graduates or law professionals who start their career from basic-level courts before working their way up, based on performance and ability. This Decision has marked a new height in Beijing’s endeavour to improve its judicial system. 

As the Cultural Revolution nearly destroyed the country’s judiciary, and market-oriented economic development has created demand for sophisticated legal institutions, Chinese leaders have in the past three decades consequently attempted to rebuild and develop the legal system via the ‘rule of law’ slogan. Yet the Chinese concept of the ‘rule of law’ is unlike that of the West. In the Western context, “The rule of law, sometimes called ‘the supremacy of law’, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.”

The notion of the ‘rule of law’ in the West does not merely imply the existence of law and its application. It was developed in the context of Western liberalism as a means to restrain the arbitrary actions of power-holders. The key point is that there should be no individuals or political organisations above the law.

In Chinese official discourse, the ‘rule of law’ is often used interchangeably with the ‘rule by law’ or ‘ruling the country according to law’ (yifa zhiguo). In this sense, law is, “Conceived and operates as an instrument with which to uphold the Socialist political order and perpetuate Party domination” and is, “Used to carry out and consolidate institutional, primarily economic, changes according to predetermined policy”.

Chinese leaders see improving the ‘rule of law’ as a way to control society and contain social unrest, providing peaceful ways for citizens to resolve disputes and seek redress for grievances. The ‘rule of law’ is also a way to discipline wayward cadres and bureaucrats, ensuring that local officials carry out national policies, establishing rules for the development of a more robust economy and reducing corruption that constitutes the greatest threat to the Party-state. Most importantly, the ‘rule of law’ with Chinese characteristics affirms the Party’s domination of the legal system and their reign above the law. According to China’s state constitution, the CCP is the only party in the country, and no opposition is allowed to exist. Neither is true judicial independence. Steps towards the ‘rule of law’ do not mean steps towards multi-party political democracy.

Beijing’s reform initiatives, however, are not just a ‘window dressing’; they reflect the leadership’s awareness of its need to improve governance, address widespread public grievances and respond to public opinion. These initiatives are also part of a long-term endeavour, ongoing since Deng Xiaoping’s era, to build a system of ‘rule of law’.

When the victims of the Cultural Revolution (such as Deng Xiaoping and Peng Zhen) became the Party’s senior leaders in the late 1970s, they believed that without laws, both the ruler and the ruled cannot be protected from the arbitrary behaviour of individual leaders. With their efforts, concepts such as ‘equality before the law’, ‘the supremacy of the law’, ‘the rule-of-law-state’ and ‘judicial independence’ began to appear in the Party’s official documents. These concepts also became popular in the discourse of legal development, and left a profound and lasting impact on Chinese society.

Today, three factors underlie the Chinese authorities’ move in implementing the ‘rule of law’. First, Xi needs a somewhat more institutionalised form of Party rule and anti-graft mechanism in order to consolidate his achievements in the anti-corruption campaign. Chinese history has shown that anti-corruption campaigns can deter officials from power-abuse for only a short time. The Party leadership has realised the necessity of swinging back to a somewhat more institutionalised form of party rule and anti-graft mechanism. The leadership has also recognised the need to boost the morale of Party cadres and state bureaucrats, shaken by the waves of political campaigning since Xi came to power. As more officials are hauled before Party Disciplinary Inspection Committees, many mid and lower-level officials have been anxious about rising political risk and career uncertainty.

Economic rewards for Party-state officials have also been on a significant decline. Beijing’s tough austerity drive, as an important part of the anti-corruption effort, has cut perks such as official vehicles, housing, gifts and other extra benefits. In 2014, for the first time in decades, the number of college graduates who applied for the civil service examination had decreased considerably. The percentage for different provinces ranged between 10% and 30%. In Zhejiang province, the number was 37%.

It is tough to run the Party-state this way for an extended length of time. Although Party disciplinary head Wang Qishan has indicated that the anti-corruption campaign will continue, the authorities are searching for ways to institutionalise these efforts and revert back to a routinised way of ruling. ‘Ruling the country according to law’ is therefore an advisable choice.

Other factors contributing to the ‘rule of law’ campaign include the consideration of regime legitimacy and Xi’s legacy. On the one hand, the authorities seemingly believe that improving the legal system will help to curb social dissatisfaction and boost the popularity of the regime. On the other, constructing a well-functioning legal system is also part of Xi’s efforts to build his own political legacy after he has become the most powerful leader since Mao and Deng.

After the Fourth Plenum, Beijing has made a series of moves. In December 2014 the first cross-administrative region court and procuratorate were inaugurated in Shanghai. A month later, the first circuit court was established in Shenzhen, Guangdong province. In the same month, a meeting of the Central Politics and Law Commission announced the abolishment of the targets for the number of criminal detainees, arrest rates, indictment rates, rates of guilty verdicts and case conclusions. These assessment targets had encouraged local police and courts to settle cases without sufficiently following due process.

The Party’s leadership over the ‘rule of law’ has been re-affirmed. Xi called for the allegiance of judges, lawyers and the police force to the Party, to create a weapon of action against the Party’s ‘enemies’.

After 30 years of development, China’s legal system has been significantly improved. The current reforms are to further improve the judicial system. However, China still has a long way to go before the ‘rule of law’ can be firmly established, due to the presence of deeply-rooted cultural, organisational and structural obstacles. Culturally, the idea of the ‘rule of law’ is consistent with neither Confucian nor Legalist philosophy; these two major traditions have underscored China’s legal development, downplaying the role of law in governance with the rationale that laws are made for governing the people, not for checking the rulers. Organisationally, the law-making body in the Chinese political system is weak, and the judicial system is not independent from the Party’s authority. The Party’s power is still un-tameable by the law.

The difficulty in transitioning to the ‘rule of law’ is also structural. The rise of the developmental state in China has been the most important factor for rapid economic growth. Laws have been used by the state to promote economic development. Development has pushed the state to impose its own ‘rational order’ on society, instead of following existing laws and rules.

In the long term, however, the expectations of many Chinese citizens have been raised – in terms of their constitutional rights and the implementation of the ‘rule of law’ – by official discourses, particularly as a result of  the Fourth Plenum Decision. Consequentially, they may put pressure on the Party to deliver further reforms.

ZHENG Yongnian is Professor and Director of the East Asian Institute, National University of Singapore. SHAN Wei is Research Fellow at the East Asian Institute, National University of Singapore. Image credit: CC by GovernmentZA/Flickr


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