Could China's 'Rule of Law' Lead to Constitutionalism?


The Chinese Communist Party is currently holding the Fourth Plenum of the 18th Party Congress, this year’s most important Party meeting (and only the second plenum to be held since Xi Jinping assumed power). This year, the plenum is devoted to the theme of “rule of law.” Many Western analysts argue that the concept as promoted by the Party should be translated as “rule by law,” but Chinese state media continue to use “rule of law” in their official English translations. Nonetheless, the term does not mean the same thing as in Western societies. With “rule of law,” as with “democracy” and “human rights,” the CCP has publicly emphasized that it will not simply adopt the Western model.

Still, we shouldn’t dismiss the importance of the heavy emphasis on the “rule of law” as a force for change in Chinese society and governance. Xi Jinping has stressed the concept since taking power; an article in People’s Daily traces how Xi Jinping has insisted upon the rule of law in his speeches since 2012. At the moment Xi first assumed power, the 18th Party Congress in 2012, the CCP Central Committee outlined China’s vision for a “moderately prosperous society,” a vision heavily based around legal reforms. By 2020, the “rule of law should be fully implemented as a basic strategy, a law-based government should be basically functional, judicial credibility should be steadily enhanced, and human rights should be fully respected and protected,” Xinhua quoted the Central Committee as saying.

Xi Jinping clearly believes achieving the “rule of law” in China is a fundamental stepping stone to achieving other key goals, including implementing far-reaching economic reforms and continuing the battle against corruption. One Xinhua editorial laid the problem out in stark terms:

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Almost all the pains currently suffered by the Chinese economy — ranging from overcapacity, real estate bubbles, risks of local government debts and shadow banks, to restricted growth in non-public sectors and insufficient innovation could find their roots in excessive administrative interference, corruption and unfair competition, all of which are the result of the lack of rule of law.

People’s Daily also published a commentary arguing that the rule of law is the key to enacting the reforms promised at last year’s third plenum.

At heart, then, the emphasis on “rule of law” is mainly aimed at economic goals, as fellow Diplomat writer Zach Keck argued earlier this week.  Instituting the rule of law will help enforce anti-corruption efforts and limit the power of local officials to meddle in China’s markets. In praising the rule of law, Xinhua also denounced the “obsolete ‘above-the-law’ privilege mentality … among some Party and government officials.” In Chinese media, “rule of law” is being contrasted to the tradition of “rule by man,” where local strongmen hold absolute sway over their domain. As such, the emphasis on rule of law is seen as a way to “modernize” and improve Party governance.

Under this framework, there are hints that China might seek to implement the rule of law as Western society understands it – where the law functions as a limiting factor on the use of power by authorities. In an interview with CCTV, Wang Lei, professor at the Law School of Peking University, said that enforcement of the law would necessarily involve finding a way to “bind power.” “The power should be under the law … that’s the key problem at present in China,” he said. Wang also argued that the “judicial branch should be independent.” Both these concepts would be revolutionary if implemented to their fullest extent in China.

Perhaps the most intriguing aspects of this Fourth Plenum are the tantalizing references to the “rule of [the] Constitution.” The idea of constitutionalism has been all but taboo in China since Xi Jinping came to power. Advocates for the idea that China’s constitution should function as a check on political power have been targeted by the CCP. A New Year’s article on constitutionalism and the Chinese Dream set to be published by Southern Weekly was ruthlessly censored to remove the paper’s arguments for the limitation of power according to the Constitution. Xu Zhiyong, an advocate for constitutionalism, was sentenced to four years in prison early this year.

Yet now Xi himself has said that “fully implementing the Constitution is the primary task and basic work in building a socialist nation ruled by law, and that the Constitution is the country’s basic law and the general rule in managing state affairs.” At the same time, Xi has given us no indication that he is willing to relinquish the CCP’s ultimate authority over the courts (and thus the law itself). On the contrary, Xi has worked to solidify Party loyalty among judges and lawyers. What’s going on here?

What Xi seems to be seeking is a system where the Party as a whole is above the law, and indeed controls the law for its own benefit, but individual Party members are beholden to the law (and ultimately China’s constitution). At the local level, “rule of law” would be in effect, and power would be put inside a “cage of regulations,” to use Xi Jinping’s phrase. Xi’s attempt to remove courts from the control of local officials is the clearest sign to date we have of this approach. The decisions issued at the Fourth Plenum will likely carry this trend even further.

In practice, however, it will be difficult to disentangle the interest of individual Party officials and the Party itself. For example, will citizens be allowed to sue local government officials for abuse of power (say, for the illegal confiscation of land)? Such a case would be in keeping with Xi’s drive to institutionalize anti-corruption mechanisms, but could also threaten perceptions of Party legitimacy. Would a judicial ruling for an aggrieved citizen against local cadres be in accord with the interests of the Party as a whole or not? These are the thorny questions that await China’s legal system as it attempts to create a working definition for the “rule of law” with Chinese characteristics.

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