To read the propaganda emerging from last week’s annual meeting of the 205 people, largely men, who run China’s ruling Communist Party, you might think that a significant revolution in the country’s legal system is about to take place. But you’d be wrong.
On Thursday, the CCP wrapped up the Fourth Plenum of the Standing Committee of its 18th Congress. Quite a mouthful, but the Plenum, which occurs in October, or occasionally November, sets the policy agenda for the coming 12 months. The leadership also likes to have a theme. Last year it was stepping up economic reform; this year it was the legal system and “comprehensively advancing the rule of law”.
As it stands, the Chinese legal system is not remotely independent — it is controlled by the Communist Party’s opaque Political and Legal Committee at all four levels. This gives party officials control over the police, prosecutors, the judiciary — and ultimately sentencing. The accused are guilty until proven innocent. Fewer than 10% of people who are charged are acquitted. The current head of China’s Supreme Court, Zhou Qiang, who was appointed in 2012, is the first head who actually has legal training. Even then, the job was seen as something of a consolation prize for him missing a seat in the 25-person Politburo of the Standing Committee. Such is the rank of the law in China.
Reforming of the legal system has much less to do with giving ordinary Chinese people a fair go and much more to do with the way the party controls China and its own internal working and processes. That the Plenum came in the shadow of the ongoing protests in Hong Kong, which have only strengthened the party’s resolve for total control, is no small irony.
These processes are under the aegis of President Xi Jinping’s ongoing anti-corruption campaign, which began the moment Xi took control of the party on November 15, 2012, and has been ramping up ever since. Prosecutors have investigated more than 8000 people on suspicion of breach of duty in the first half of 2014, according to statistics released by the Supreme People’s Procuratorate (SPP), or national state prosecutors. This included 303 officials at or above the county level, which represents a year-on-year increase of 21.2%, and 33 officials at the bureau level, up 266.7% from the same period a year earlier.
Last year’s economic reforms were the second leg of Xi’s reform program, which has met with stiff internal resistance. This year’s move into the legal arena — which Xi has described as a “sister” document to last year’s economic blueprint — is also likely to be the subject of pushback from the same forces inside the party that don’t like where Xi is headed — the vested interest groups that have been minting millions by virtue of their control of key industries and a vast network of institutionalised corruption.
In the full decision on the Plenum, Xi Jinping has surprisingly pulled focus on China’s constitution, a document promising fairness and justice to the Chinese people, which has largely been pushed to one side in favor of party fiat for the past 30 years. Cadres must now swear allegiance to the constitution, and there is promise that schoolchildren will be taught about the law in new classes.
Kerry Brown, the head of Sydney University’s China Studies Centre, believes the Communist Party — shorn of any real ideology — is striving for renewed legitimacy by appealing to China’s rising property-owning legal class — and that this is propelling some its legal reforms. Brown wrote on the University of Nottinghams’s China Policy Institute blog:
“The Fourth Plenum is part of a process to appeal to the great emerging middle class of China, in order to achieve the programme of moderate prosperity by 2021.”
“It is an attempt to sell the message that the Party is not a clique driven entity, but able to appeal across society and share out some of the goodies of wealth creation and prosperity. Smashing up some of the greedy networks which grew up in the early 2000s appeals hugely to this middle class and is the most tangible symbol that the Xi leadership is trying to speak to them and keep them onside.”
Commentators continue to disagree about whether the reforms are intended to implement a system of rule of law that imposes meaningful restraints on government officials or merely a more efficient rule by law. However, as Randall Peerenboom, Professor of Law at La Trobe University and author of China’s Long March toward Rule of Law, notes, “a more efficient, fair and just rule by law system would still be better than a less efficient, more unfair, more unjust one. Moreover, many of the reforms are consistent with and necessary for rule of law as well.”
Apart from the clear lack of basic social justice or even-handed adjudicated business disputes in China, there is a fundamental contradiction between China’s stated desire to build a more market-based economy and the country’s lack of any independent legal or regulatory institutions to oversee the market and give participants proper redress. Still, as most experts note, some reform is better than none at all, especially as there seems to be progress towards some more basic milestones.
As Professor Stanley Lubman, one of the leading China legal doyens, pointed out in his regular Wall Street Journal column on Chinese law,
“What is needed is a more explicit commitment to strengthen the discipline required for the courts to enforce laws consistently and reasonably.”
And, certainly, for most Chinese citizens some consistency in the application of the law will be a good start. But any real chance of China having a legal system that offers much protection — beyond what are so far early and largely symbolic moves of the Forth Plenum for all of China’s 1.4 billion citizens — remains to be seen.
Right now Xi is raising the expectations of the Chinese people. It’s a strategy that is not without danger, for if those expectations are dashed in coming years he may have found he has only fertilised the existing seeds of discontent.