November 20, 2014
As Editor, I have the distinct pleasure of introducing a special issue of China Brief, focused on the Chinese Communist Party’s Fourth Plenum and its theme of yifazhiguo, often translated as the “rule of law,” though, as one contributor notes, the term is better translated as “rule according to law.” China Brief has brought together leading experts on the Chinese legal system and foreign policy to contribute their analysis on the implications of the 18th Central Committee’s annual meeting in Beijing on October 20–23.
Overall, the analysts find limited promise in the announced reforms, and many reasons to be skeptical about the long-term trajectory of the Party’s relationship to the law. The Fourth Plenum’s Decision document distanced the Party from earlier reform efforts in the 1990s and 2000s for constitutional issues and judicial independence. While few details are currently available for the major initiatives, Chinese President Xi Jinping’s emphasis on the “great rejuvenation of the Chinese nation” and cultural self-confidence has now extended into the Chinese legal field, as the Plenum’s Decision and comments by senior leaders explicitly indicate that further inspiration for China’s legal reforms will come from within China, not from the West or other Asian nations. This exclusionary outlook by the Party will likely extend into the international arena, as China moves to generate support for its rise to great power status through favorable changes to the international legal system.
In this special issue, Jerome A. Cohen examines the Plenum through the lens of its declared “National Constitution Day” on December 4. Reflecting the troubled history of legal reform in China, this new observance is actually the third legal-focused celebration set on this date, following two abandoned pronouncements dating back to 1982 and 2001. Cohen argues the Decision represents meager progress in empowering the Standing Committee of the National People’s Congress (NPCSC) to fulfill its responsibility to enforce the Chinese Constitution, and the Decision’s use of “constitution” (xianfa) instead of “constitutionalism” (xianzheng) reflects President Xi’s continued suppression of the latter term and dims prospects for the Party submitting itself to the constitution in the future. Yet, Cohen finds hope for future legal reforms both in the very theme of yifazhiguo for the Plenum and the attention paid to the issue by the Chinese government, media and, perhaps most importantly, the Chinese public.
Taking a comprehensive view of the Plenum and its Decision document, Carl Minzner highlights the three core takeaways: modest technical legal reforms, strengthened Party control and indigenous sources for future reforms. Understanding the importance of terminology for the Party, Minzner makes a clear distinction between the “rule of law” as the Party translates yifazhiguo and a more accurate translation of “rule according to law.” Similar to Cohen’s discussion of the NPCSC’s lack of independence from the Party, Minzner contends the Decision institutionalizes Party control over legislation, which will not only make the role of the NPC, China’s “rubber-stamp” legislature, even more perfunctory, but also reduce the space for legal advocates to push for greater reforms, since the Party’s implicit power to review legislation is now explicit. Furthermore, President Xi’s efforts to refocus the Chinese state on China’s own history suggests the Chinese legal field may become more isolated from the international community, as “foreign models” are no longer acceptable in China.
Willy Lam, a Jamestown Foundation Senior Fellow, explores the elite politics behind-the-scenes of the Plenum. Lam suggests President Xi has signaled his own unrivaled power in the Decision, since Xi was the lead author and included himself in the traditional Party theoretical lineup of Mao Zedong and Deng Xiaoping, something neither Jiang Zemin nor Hu Jintao accomplished while still in office. This expanded power also carried over to Xi’s anti-corruption office, as the Central Commission for Disciplinary Inspection gained greater sway over the military’s own graft investigations. Yet, Xi’s clout appears to be limited to policy, as the Chinese president experienced several apparent failures in planned personnel moves. Xi was unable to promote his favored military confidants, Zhang Youxia or Liu Yuan. More importantly, the lack of a public announcement of former Politburo Standing Committee (PBSC) member Zhou Yongkang’s fate—undoubtedly sealed, but still in need of an official verdict—may signify opposition by Party elders. Yet, this opposition is likely more concerned with the prosecution of a former PBSC member—once immune from corruption charges—than an actual attempt to protect Zhou from his inevitable downfall.
Broadening the scope of analysis, Timothy Heath discusses the Plenum’s implications for the Chinese government’s foreign policy. Heath follows the history of previous fourth plenums and finds they often foreshadow major changes in China’s behavior in the international community. Heath argues that the Party’s attempt to consolidate control over the domestic legal system will likely have repercussions for Beijing’s use of international law in its foreign policy moving forward. Chinese leaders’ talk of “upholding the rule of law” abroad is contingent on the rule of law favoring China, meaning Beijing will pick and choose the international legal tools that serve its interests—leveraging its veto in the United Nations Security Council but ignoring the Philippines’ arbitration of their disputed maritime border in the South China Sea through the International Tribunal on the Law of the Sea (ITLOS). This increased emphasis on international law as not only a rhetorical device to criticize the United States but also as a tool to support China’s continued rise in Asia nevertheless provides an opportunity for Washington to encourage Beijing’s continued adherence to international norms.
Refocusing on the grassroots level, Jerome Doyon and Hugo Winckler consider the impact of the Decision on local courts and their judicial independence from local officials. Doyon and Winckler contend that the announced policies do provide some semblance of judicial independence, but at the cost of increased control by central authorities in Beijing. In one of the Decision’s few explicit restrictions on Party power, local governments are now required to document cadres’ interference in legal proceedings and, in turn, cadres will be evaluated on their respect for the “rule of law” for promotions—but provides no further details, suggesting officials may end up policing themselves.
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