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China’s quest to establish greater rule of law started with the country’s 15th Party Congress in 1997. It was an expedient move: China's economic machine was kicking into high gear, and ascension to the World Trade Organization was imminent. Both would require a legal regime that, at the very least, protected property rights and regulated commercial dealings. Since then, the legal profession has boomed in China. The country boasts an extensive network of courts and numerous official channels through which citizens can seek redress for grievances against the government. At the same time, however, corruption has exploded.
And so it was with a sense of urgency that the Fourth Plenum of the 18th Central Committee meeting convened last week to unveil comprehensive legal reforms meant to buttress Chinese President Xi Jinping's signature anticorruption campaign. Many of the announced reforms echo those in the Five-Year Reform Plan of the Supreme People's Court that came down this past July, and pilot programs are already underway in Shanghai, Guangdong, and a few other key areas.
The Fourth Plenum reform outline provides for a stronger, more independent, and more professionalized judiciary. The first major change is the deeper separation of the courts from party interference, a key nexus of corruption. Judges will be chosen from the legal profession instead of the ranks of party members without any training in law. The infrastructure of the judiciary will be built out, with an additional level of circuit courts under the Supreme People’s Court. Legal jurisdictions may be rearranged so as to not overlap with local jurisdictions, decreasing the influence of the latter.
The second major change is the increased scrutiny of judicial decisions. Judges will have lifetime accountability for major opinions and will be disciplined for opinions deemed to be incorrect. These measures augment the provisions in the Five-Year Reform Plan for greater individual decision-making by judges, who must currently factor the opinions of his or her peers and superiors into final decisions. Beijing recognizes that greater judicial independence is not without risk, but judges had not previously been held sufficiently accountable for their opinions. The result was that the judiciary was often both difficult to manage and ineffective. As expected, the Fourth Plenum responded with promises of an extensive judicial supervision and evaluation system.
The last major piece of the reform was to advise courts to be more observant of due process and the rights of parties to a case. Despite extensive legislation in the past decade shoring up procedural safeguards at trial, particularly in criminal cases, the courts had developed a reputation for spotty and capricious application. The public will soon have a hand in monitoring this problem: trial proceedings will now become much more transparent with public broadcasts and wider access to judicial opinions.
Although these reforms are arguably the most sweeping overhaul of China's legal system since the country’s opening to the West, many observers remain unsatisfied. Rather than promoting justice, fairness, and equality under the law -- the values that should underpin a country's legal development -- the initiatives seem to be motivated by a narrower and less inspiring desire to make China's judiciary more efficient and organized.
In addition, the Fourth Plenum strongly hinted that the party would assume a greater role in driving the rule of law in China. What this means in practical terms is that the Politics and Law Committees, the party’s judicial supervisory bodies, may become even more powerful. On the one hand, an increase in the party’s reach should never be surprising, but there had been talk amongst officials in the spring of phasing out these committees, especially after Zhou Yongkang, their former director, was purged in spectacular fashion in August.
LAW AND POWER
There was reason to hope for more. At a celebration of the 30th anniversary of China's current constitution, Xi stated that the country must uphold the highest law, which ostensibly protects freedoms of speech, press, religion, and general assembly. Emboldened, liberal voices both within and outside of the legal profession increased the drumbeat for reform. Some even called for the separation of powers between the legislature, executive, and judiciary systems and a significant rollback of the Communist Party's place in government. What followed was one of the toughest crackdowns on liberal activists in recent memory.
Although the move might have looked like a cynical about-face, Xi had never intended for his remarks about the constitution to be interpreted as support for liberal democratic values. His early statements tended to recall the “profound and bitter lessons of the ten-year Cultural Revolution,” a time, according to Zhang Hengshan, director of the Department of Political Science at the Central Party School, when "the exercise of state power did not face any constraints." Law is seen as a defense against repeating that experience because it will instill discipline within the Communist Party and serve as a check on government action. The Fourth Plenum’s own paeans to the constitution affirmed this interpretation, marrying similarly soaring liberal overtones and emphasis on the socialist rule of law.
It makes sense, then, that the reform package would have taken a more bureaucratic view of the judiciary as an ally to the party in improving governance and strengthening its internal management -- rather than as the people’s advocate against the party. As Xi has said, "The rule of law is the Communist party's basic strategy to govern the country and a fundamental way of managing state affairs." The job of the reforms is to put China's legal system in the best position to fulfill these roles.
It would not be accurate to say, though, that the rule of law is merely an arcane matter of policy. Li Shenming, former vice president of the Chinese Academy of Social Sciences, recently reminded The People’s Daily that increasing the rule of law in state and society is meant to create a so-called socialist country with Chinese characteristics, which the party has come to equate with capable, modern governance. An op-ed in the same paper argued that, with this in mind, the “inevitable choice is to comprehensively deepen [legal] reform” so as to “achieve the great rejuvenation of the China Dream.”
From a liberal democratic perspective, blatant use of the law as a means for strengthening the state instead of protecting fundamental rights is, frankly, unjust. Even if it is true that government officials will face greater challenges to their powers, and that society will be better governed with a functional judiciary in place, the Communist Party’s bottom line will still be that the legal system works for the state, not the people.
But this is how meaningful legal reform works in authoritarian countries. Unable to champion true judicial independence, the ruling party’s solution is to make sure that the courts are hyper-competent and have enough structural integrity to carry out the law. China’s legal reforms are really an expansion of the state to include an organ more responsive to the people but still sheltered from the destabilizing forces of democracy. Although the party rejects a legal system based on democratic ideals, it does want a check on the bloated and corrupt bureaucracy that currently runs China. As an official alternative channel for those unhappy with the government, the courts will fill that role.
The party’s goal should be to avoid the pitfalls that have awaited other authoritarian countries that have tried this experiment. As in China, these governments implemented legal reforms primarily because the central government could not monitor officials at the local level, leading to uncontrollable graft and general dysfunction. Yet Gamal Abdel Nasser’s Egypt, Kenan Evren’s Turkey, Ferdinand Marcos’ Philippines, Augusto Pinochet’s Chile and many others unhappily discovered that legal reforms, no matter how tightly controlled, ended up empowering the courts far more than originally intended. The mistaken response of each of these failed regimes was to further tighten the screws.
Egypt’s judiciary, which had the power to legitimize the coup against Muslim Brotherhood–affiliated Mohamed Morsi in 2013, owes its standing to the reforms of President Anwar al-Sadat. Nasser, Sadat’s predecessor, who began the project of judicial development, had undone his own initiatives. After allowing administrative courts greater independence, he decided they were too great a threat when reform-minded judges who had spoken out against his politics gained prominence in Egypt’s judicial bar. Many of Sadat’s legal initiatives, particularly the coherence and order of the court system, can be found in the Fourth Plenum.
Evren, Marcos, and Pinochet each stripped their respective courts of their previous independence and integrity. When these dictators arrived at the height of their clout, a strong judiciary in their respective countries awaited them. Judges’ constant talk of rights and reform prevented these men of force from consolidating power in their own government. Their solution was to muzzle the judiciary and strip it of any powers that were not purely administrative. The despotic regimes of these leaders faced innumerable economic and social problems in addition to lawlessness, so it is unfair to place the blame for their downfall squarely on a neutered judiciary. However, without strong legal systems, the regimes lacked legitimacy and connection with the general populace. The government ignored citizens’ grievances and removed any institutional challenges to its power, leading to a corrupt, incompetent echo chamber of an administrative system.
The more successful stories of judicial reform come from Mexico under the Partido Revolucionario Institucional and pre-democratic Poland. In both cases, reforms expanded the courts’ powers of adjudication. In Mexico, the changes were instrumental in the process of gradual democratization that arguably led to the end of the PRI’s grip on power with the election of Vincente Fox in 2000. Poland developed its legal system as part of its effort to join the European Union and continues to slowly build the capacity of the judiciary.
Pakistan under the general-turned-president Pervez Musharraf and Zimbabwe under Robert Mugabe present more nuanced cases in which the courts, backed by popular support and a burgeoning legal profession, constantly bargain with the regime for greater autonomy. In the resulting arrangement, the judicial system is allowed to govern itself and adjudicate without significant interference. It does not, however, directly challenge the central government or its core interests. Over time, that will likely change as the courts win greater latitude.
This is the likely equilibrium that China’s courts should strike, but they are still far away from achieving it. Certainly, Beijing will have to deftly handle a potential resurgence of the Politics and Law Committees lest it repeat fallen strongman Zhou’s unpopular, repressive and corruption-riven tenure. In the short run, the judiciary will remain Communist Party staff, executing its authoritarian vision of law. After a time, this position will no longer be acceptable. A legal system is most robust when it presents itself as a handmaiden of political actors but slowly and shrewdly establishes itself as a political force, pushing its own interests and, hopefully, those of the people who seek recourse through it. For the future of law in China, reformists and the Communist Party alike should acknowledge this duality and embrace it.