• Hugo Winckler

A new “Rule of Law” in China?


The position of the law and its role in balancing politics have been at the centre of academic debates in China for many years, whether in relation to reforms of the legal procedures, announcements of reforms to the re-education through labour system, problems of corruption among judges and even the debate on the government’s constitutionalisation. It is therefore natural that these discussions had an impact on the agenda of the 3rd Plenum of the 18th CCP Congress. The promotion of a new Rule of Law based on more solid foundations was announced. What is this new Chinese Rule of Law?

In his speeches of 24 January 2012 and 24 February 2013, Xi Jinping underlined the importance of continuing to develop the Rule of Law in China. Hu Jianmiao repeats some of the phrases used by Xi Jinping to qualify this Rule of Law: a Rule of Law with “Chinese characteristics” (中国版, Zhongguo ban) as the Rule of Law cannot not be achieved without acknowledging China’s specific nature, and “comprehensive” (综合版, zonghe ban), as it is not enough to establish a Rule of Law alone, society must also be governed by this law. Xi Jinping’s project is ambitious and made necessary by current economic imperatives facing the Chinese society.

The “Decisions on major issues concerning comprehensively deepening reforms” (中央关于全面深化改革若干重大问题的决定, zhongyang guanyu quanmian shenhua gaige ruogan zhongda wenti de jueding, hereafter ‘the Decisions’) published following the 3rd Plenum were particularly focused on legal reforming. This plan includes the abolition of re-education through labour camps, the rationalisation of the courts’ funding and competences/authority, a decrease in the number of crimes punishable by death sentence, the formalisation of respect for the Constitution in proceedings, and increased protection for private property against all forms of interference. Point 9 of this document specifies a programme aiming to develop the Rule of Law. In November of last year, Meng Jianzhu[5] published an article in the People’s Daily entitled “Deepening reforms of the judicial system” (深化司法体制改革, shenhua sifa tizhi gaige), which looks at the announced reforms. Each of the elements is a significant breakthrough and has triggered debates, which this article will discuss, identifying and analysing key aspects of the proposed reforms.

What should change

The reform project aims to establish the structural conditions needed for an independent judiciary. The various elements proposed are still at a project stage, but the foundations seem sound. One will now need to monitor the evolution of the Chinese judicial system. Below is a summary written by Jiang Huiling analysing the reform project.

Implementing a unified salary payment system and a single nomination and resignation process for judges.

The cornerstone of the proposed reforms is the redefinition of the legal system’s financing. This relates both to judges’ wages and to operational costs for courts, and applies to trial chambers and investigative organs. Managing the legal funding budget should fall to a single organisation, established at the provincial administration level (法检省级统管, fajian shengji tongguan). This type of development has long been supported by academics, who see it as a fundamental guarantee of judges’ independence. Jiang Huiling reports that a central system would have been too complex to implement, while a local system would, in practice, have ended up being subject to local politics. By separating the remuneration system from local interests, the reforms aim to provide the legal sector with the structural means to its independence. The new system will be dual: it should provide both a national remuneration system for the Supreme Court and High Courts (最高法院和高级法院, zuigao fayuan he gaoji fayuan) and a provincial remuneration system for basic and intermediate people’s courts (基层法院, jiceng fayuan, 中级法院, zhongji fayuan). According to the author, this decoupling should help avoid most conflicts of interest.

Another key element of the reforms is the implementation of a “misalignment” (两区适当分离, liangqu shidang fenli) between legal and administrative responsibilities. This means that a judge’s authority will cover parts of several administrative districts, and judicial nominations will not be the responsibility of local officials anymore. Implementing these two distinct areas of jurisdiction should avoid the existence of networks of influence between political and legal powers, therefore creating two parallel interest streams and making corruption more risky/costly, as local administrators would fall under the jurisdiction of several judges.

According to the author, while this step is crucial, courts would also need to be able to set their budgets independently, without interference from administrative organisations. The author also highlights the need for a realignement between the various provinces. Although the system would be run independently across each province, poorer provinces must be able to obtain enough funding to ensure that their legal system develops appropriately.

Criminal Procedures and Law

The Decisions propose to strengthen guarantees surrounding the right to own property by establishing legal safeguards against various administrative methods of seizing personal property. Furthermore, the reform project aims to move towards increased responsibility for investigators during enquiries, to prevent information extortion and the fabrication of evidence. Finally, the reforms should lead to the abolition of 13 offences punishable by the death penalty, particularly for non-violent economic crimes. The system for reducing sentences should also be reviewed.

Abolishing re-education through labour camps

The abolition of re-education camps was announced long ago[6] and is only a consequence of previous political decisions. The fact that reforms to the system of re-education through labour are specifically mentioned in the Decisions nevertheless represents a significant step towards increased protection of basic freedoms in China, as acknowledged by the authors.

Making sense of the changes

What has been revealed by the reform methods

Xia Nan analysed the reform process. He notes that for 15 years, the legal system has primarily evolved in a piecemeal manner, in response to specific events. These developments were therefore not initiated by a political process but from within the legal system itself. The author describes this as a mutating legal system. However, according to the author, within the context of the Decisions, the legal system is rather “being reformed” (被[7]改革, bei gaige). From now on, legal developments will be the result of a defined and systematic process initiated by political policies. Furthermore, current reforms are closely linked to national and local level work carried out by the Commission on Political and Legal Affairs (政法委, zhengfa wei). The Party has therefore taken over legal reform.

It is for this reason that the author believes this to be the first significant reform project in several years, highlighting the determination of those in power. However, the author ends his article on a particularly critical note. He believes this reform is missing a decisive element: the sincere and motivated participation of the general public. Without it, the project will remain internal to the Party. The careful research and preparation work for these reforms is the work of the Commission of Political and Legal affairs and, as such, it remains a tool that serves the government.

This reveals the economic emphasis of the reforms

The main aim of these “top-down” reforms (顶层设计, dingceng sheji), to use the same term as Xia Nan, is to support the economic reforms launched by the 3rd Plenum. Xie Zhusheng explains that the legal reforms are not presented as a purely legal improvement, but rather as an adjustment of the legal system to a market-oriented logic. The author believes these reforms are crucial for continued growth in China. Law will therefore be adapted to meet economic changes. This element is central to understanding the challenges and stakes of reforms, which aim to create a legal system that is more independent and better equipped to play a regulating role in China’s economic development.

This comment by Xie Zhusheng reveals a new Rule of Law with economic aspirations. The law can be used to "put order in the chaos” (拨乱反正, boluanfanzheng) that is the economic development of China. Market logic is now fairly developed in China, but legal protection is still too weak. The method applied to this situation, the “priority doctrine”[8] (先行思维, xianxing siwei), expects economic reforms to be implemented first, followed by legal improvements to shore up their progress.

The author notes that, as a result, reforms seem to be an end that would justify any means. “The law is the “caged bird” of the reforms" (法治成了改革的“笼中之鸟”, fazhi chengle gaige “longzhong zhiniao”). Nevertheless, these economically focused legal reforms cannot be implemented without some repercussions on political power as the country moves from the “visible hand” (看得见的手, kandejian de shou) of the Party, central regulator of the economy, to the invisible hand of the market. The author reveals that the transformation of Shanghai into a free trade zone was perhaps the epitome of the new model. The economic zone should define specific legal conditions to ensure that the Party cannot intervene in private economic relationships. The country would then move from a principle of “management” (管理, guanli) to one of “governance” (治理, zhili).

This view of the law as an economic tool opens up a powerful interpretative framework to analyse the debate surrounding legal reforms and establishes an interesting explanatory diagram to understand the discussion on governmental constitutionalization that preceded the 18th Congress[9]. China’s new Rule of Law is economic and not political; the debate surrounding the Rule of Law has been divided into two different branches. Therefore, as is often the case in China, the best way to understand the reforms is to look at what is still missing.



Sources:

Xie Zhusheng[1], “Rule of law or reforms: who is the caged bird?”, Nan Fengchuang - South Reviews, 22 November 2013.

Hu Jianmiao[2], “Salient points relating to the Rule of Law from the 3rd Plenary Session of the 18th Congress”, Xuexi shibao – Study times, 25 November 2013.

Jiang Huiling[3], “Specific problems caused by reforms to the judicial system”, Caijing, 4 December 2013.

Xia Nan[4], “From legal reforms to a reformed justice”, Caijing wang, 10 December 2013.

[1] Former dean of the law faculty a the University of Hong Kong. [2] Professor of law at Zhejiang University. [3] Judge for the Supreme People’s Court. [4] Pseudonym for Chu Wangtai, a lawyer from the Beijing Huayi practice. He frequently comments on current legal news in the press. [5] Successor to Zhou Yongkang at the head of the Commission for Political and Legal affairs. [6] See Hugo Winckler, “Abolishing re-education through labour camps”, China Analysis, n°42, April 2013. [7] 被 indicates the passive tense and is often used in the Chinese media to imply involvement by the Party, without actually naming it. [8] Expression used by Deng Xiaoping. [9] See previous issue of China Analysis.

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