Rule of law in China? Still a long way to go

 Rule of law in China? Still a long way to go

President Xi Jinping has announced a far- reaching plan to bolster the rule of law in China, but his efforts could be compromised by the tacit proclamation that the Chinese Communist Party (CCP) remains above the law.

For the first time in 65 years, the theme of the CCP Central Committee's plenary session last month focused on the "rule of law", underscoring Mr Xi's resolve to tackle China's serious corruption problem since he took power in November 2012.

At the end of the four-day meeting, more than 350 Central Committee members adopted a resolution titled "Major decisions on the comprehensive implementation of rule according to law". The document contains, among other things, a long list of measures aimed at transforming the legislative process, empowering judges and ensuring law compliance by both party and government officials.

The changes are indeed ambitious and very much welcomed, if not for one constant - that the CCP remains above the law.

The relations between the Communist Party of China (CPC) and the rule of law are "the core issue for the building of a country with the rule of law", Chinese state media reported Mr Xi as saying in an interpretation of the plenum's resolution.

"Party's leadership is the most essential feature of the socialism with Chinese characteristics, and the most fundamental guarantee of socialist rule of law," he added.

His statements reaffirmed the CCP's paramount status and monopoly of power.

Mr Xi also urged party cadres "to speak out... with self-confidence in a big way. (We need) to explain the essential features of our socialist rule of law so as to ensure a correct understanding of the facts".

His remarks appear to address a question asked by a young Chinese student some five decades ago: Is the law above the party or is the party above the law?

This is not an academic exercise but an issue steeped in blood and tears. Tens of thousands of people suffered human rights abuses in the early years of CCP rule.

The person who posed the question in 1957 was Lin Xiling, an outspoken law undergraduate. The young woman's activism would see her spend 15 years behind bars. In 1983, when Mr Peng Zhen became the new parliamentary Speaker, he vowed to bring about rule of law to China.

I put Lin's question to him, and this was his astonishing reply: "Which is above which, it is hard to say. Frankly speaking, I don't know." His answer showed how sensitive the issue was.

Top party leaders have evaded providing an answer until now.

Mr Xi's reiteration of the party's supreme status leads many to conclude that any legal reform may just be cosmetic and marginal.

Then there is also the other key issue, which is the concept of "rule according to the Constitution". The plenum's resolution stressed Mr Xi's resolve to "protect the authority of the Constitution and put it in the front and centre of Chinese governance".

It also said that Dec 4 would be designated as National Constitution Day, that officials would have to take an oath of allegiance to the Constitution, and that it would be promoted "throughout society".

Everyone "must regard the Constitution as the fundamental guideline of their activities", according to the document.

Mr Xi has put the Constitution at the forefront because it codifies the ruling status of the CCP.

"The Constitution as the fundamental law of the state establishes the Party's leadership," said the resolution. Thus, upholding the Constitution means upholding the CCP's authority, and any challenge to its ruling status is by default anti-Constitution.

For the "rule according to the Constitution" to take place, it requires two pre-requisites.

The first is to restore the authority of the Constitution, which was effectively rendered void and null by a 1955 High Court Legal Explanation banning the citing of the Constitution in court proceedings.

Referring to the anomaly, Professor Wang Zhenmin, Dean of Law at Tsinghua University, said that "nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced". He stressed that without restoring the Constitution as a "real" law, the "rule of law" concept will remain an empty slogan.

The second pre-requisite is the creation of an independent body to adjudicate contra-constitutional policies. The plenum ignored calls for setting up a constitutional court.

Instead, it called on the Chinese Parliament to step up "supervision of the implementation of the Constitution".

Efforts to boost the rule of law in China are laudable, but the people should not be kept waiting for too long.

chingcheong@gmail.com


This article was first published on November 18, 2014.
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