Is China making progress on rule of law?

September 23, 2014 12:18
Delegates attend a session of the National People"s Congress at the Great Hall of the People in Beijing.  Governing the country in accordance with the constitution is a controversial issue in China. Photo: AFP

China’s Communist Party has announced that a plenary session of its Central Committee will meet next month and the focus will be on the rule of law. While no one expects the party to allow a fully independent judiciary, there may well be progress while leaving in place the ultimate role of the party.

The meeting, known as the fourth plenum, will review developments since the third plenum last November, when a road map for economic reform was laid out.

Since then, some headway has been made. In late August, the Chinese legislature adopted a revised Budget Law, which has been hailed by Hu Shuli, editor-in-chief of Caixin Media. “Under the new law,” she wrote, “budgeting is no longer a government's private affair, but is subject to rules and regulations that hold the government to account.”

Whatever legal reforms are made, the party will still be above the law, even if individual members are subject to it. And where political cases are involved, the party will determine the outcome.

This is clear from the case of Zhou Yongkang, former chief of domestic security, who stands accused of massive corruption. Though the case has not yet been submitted to the courts, the party has already pronounced him guilty. No doubt, he will be convicted after a trial.

Nonetheless, there is plenty of room for improvement where rule of law is concerned. Some issues were noted at the third plenum, such as barring confessions obtained through torture and ensuring that the people “feel equality and justice in every court verdict”.

While the party retains ultimate control, it is using law as an instrument. All the knotty problems it faces, such as corruption, protests over confiscation of farmers’ land, as well as environmental and health issues, involve regulations and how law is implemented.

A closely watched blog run by Susan Finder, a legal scholar who has been observing the Supreme People’s Court for over 20 years, recently disclosed how the Supreme People’s Court appears to be incorporating certain western legal concepts.

Since May, the court has been issuing “model cases” monthly to guide lower courts. Earlier this month, it held a press conference highlighting cases involving the Open Government Information Regulations adopted in 2007 under which citizens can request government information.

Some citizens have requested release of environmental impact assessments. Others have called for the release of a contract signed by a government body with a property developer after farmers’ land had been seized. In almost all cases, the government had stonewalled without, in the court’s view, setting out the legal basis for its refusal to release information.

This suggests that the judiciary is putting pressure on the government to comply with its own regulations and to be more open. It also suggests that this is one area that will be discussed at the plenum next month.

It is certainly of interest that China has the equivalent of a freedom of information act, and that its citizens are not shy about asserting their legal rights.

Actually, the Chinese constitution was amended in 1999 to say, "The People's Republic of China governs the country according to law and makes it a socialist country under rule of law."

Ironically, governing the country in accordance with the constitution is a controversial issue in China.

A month after being selected as party leader in November 2012, Xi Jinping gave a speech marking the 30th anniversary of the enactment of the current constitution in which he said: “We must firmly establish, throughout society, the authority of the Constitution and the law and allow the overwhelming masses to fully believe in the law."

After that, however, a New Year editorial supporting constitutional government was yanked from a Guangdong newspaper and word spread that so-called “constitutionalism” was nothing but an attempt to negate the party’s leadership.

Surprisingly, on Sept. 5, Xi again brought up the important role of the constitution, this time in a speech marking the 60th anniversary of the National People’s Congress, China’s legislature. It is unclear which forces in China are for or against constitutional rule.

But the party clearly feels that rule of law needs to be strengthened as long as it remains in ultimate control. This idea was encapsulated in the title of a 1999 book written by Stanley Lubman, a noted American expert on Chinese law. It was called Bird in a Cage: Legal Reform in China after Mao.

Fifteen years later, the bird is still caged. The hope now is that the cage will be made somewhat larger.

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Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.