China Seeks Economic Gain From Rule of Law Drive

An analysis by Michael Lelyveld
2014-11-03
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A Chinese police officer (R) stands guard with paramilitary police officers in central Beijing as the Communist Party opens its Fourth Plenum meeting, Oct. 20, 2014.
A Chinese police officer (R) stands guard with paramilitary police officers in central Beijing as the Communist Party opens its Fourth Plenum meeting, Oct. 20, 2014.
AFP

China has promised major social and economic benefits from its push to promote the "rule of law," but the prospects for success remain unclear, experts say.

President Xi Jinping made legal reforms the focus of the ruling Chinese Communist Party (CPP) Central Committee's fourth plenary session on Oct. 20-23, giving rise to a range of hopes and concerns.

Was the party embracing judicial independence and advancing individual rights, or simply demanding obedience to the government under the "rule of law" banner?

Official commentaries leading up to the plenum seemed to have it both ways.

In one editorial comment, the official Xinhua news agency said China must "shake off the past shadows of the 'rule of man,'" citing those "in a position of power" who would "place one's authority above the law."

"Such governance no longer suits a modern society which features greater individual independence, more diversified values and more complicated interests and interpersonal relationships," it said.

But farther down in the same commentary, Xinhua seemed to subordinate law to the ruling party's authority.

"Also, it should be made clear that rule of law will not conflict with the leadership," of the CPP, the agency said.

Consolidating power

Such contradictions have led to conclusions that the rule of law is about consolidating rather than compromising the central authority's power.

"The choice of theme for the plenum has nothing to do with implementing the rule of law as an independent check on party power," wrote Fordham University law professor Carl Minzner in Foreign Policy magazine.

"Xi has ruled this out. Like his predecessors, he remains committed to one-party rule," Minzner said.

The CPP is "the most fundamental guarantee" for advancing the rule of law, Xinhua quoted Xi and party leaders as saying at the plenum's conclusion.

At a post-plenum meeting on Oct. 25, disciplinary chief Wang Qishan stressed CPP control, saying members must "be obedient to the Party and act as ordered."

CPP regulations "should be sterner than laws," Wang was quoted as saying.

Among more hopeful signs, the plenum called for establishing circuit courts and other measures to curb local influence over the legal process.

The reform plan "includes ensuring the independence of courts and prosecutors," according to Xinhua.

Control over the law

But several statements also raised concerns about the CPP's power over the law.

"The decision notes that sticking to the Party's leadership is the fundamental requirement for socialist rule of law," the plenum document said.

"The Party's leadership and the rule of law is consistent with each other, as socialist rule of law must adhere to the Party's leadership, while the Party's leadership must rely on socialist rule of law," it said.

Ultimately, it appears that the law will be what the party says it is.

The CPP "will predominate the rule of law. It's a tool of governance that's not a constraint on official policy," said David Bachman, a China scholar and political science professor at University of Washington in Seattle, although he also expects more administrative regularity and legal transparency.

Bachman sees the initiative as an effort to end interference by local officials in civil and ordinary criminal cases, which has led to widespread rights abuses, including arbitrary verdicts and wrongful imprisonment.

"The country will enhance the protection of human rights in judicial procedures," according to a Xinhua summary of the plenum communique.

"China will try to recruit lawmakers, judges and prosecutors from qualified lawyers and law experts," it said.

But Bachman believes judges are still likely to be political appointees.

A hopeful sign

In another more hopeful sign, official reports from the plenum carried English-language references to the "rule of law" rather than "rule by law," downplaying the authoritarian implications, he said.

Bachman also detected a shift from previous party pronouncements that China has nothing to learn from outside influences or international legal standards.

"In some ways, that's a step forward from where we were a year ago," Bachman told RFA.

While the plenum promised that "China will work to build a law-abiding government," the strong role for central authority appeared to leave the CPP as the ultimate arbiter of accountability.

In another commentary, Xinhua interpreters tried to sell the economic benefits of the rule of law initiative.

"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," Xinhua said.

One reading is that the government is seeking to blame all its economic challenges on illegal activity rather than past policy decisions.

Motives in doubt


Such self-justification may raise doubts about some of the motives behind the campaign.

Arguably, problems like industrial overcapacity and excessive property development have at least as much to do with previous economic policies as with lawbreaking.

Now that China's economic growth has slipped to its slowest pace in five years, the new government has launched its rule of law quest at a sensitive time.

The leadership recently declared an end to Xi's "mass line" campaign to stamp out "undesirable work styles such as formalism, bureaucracy, hedonism and extravagance."

Under that campaign, some 63,000 officials were sanctioned in the first five months of the year.

China prosecuted 21,652 officials on bribery charges and convicted 13,414 in the first nine months, an official of the Supreme People's Procuratorate said last week.

Although the wave of cases has had unsettling consequences for party cadres, Xinhua cited perceptions that "the rule of law could help institutionalize the popular anti-corruption campaign," essentially replacing one slogan with another.

How soon that would lead to a more stable political environment or sustainable economic growth is anyone's guess.

Corruption, transparency

Corruption among local officials and resistance to central government policies are likely to be top targets of the new campaign.

"I think what they're looking at particularly is doing away with corruption, following whatever the law says," said Thomas Bellows, political science professor at University of Texas at San Antonio and editor of the American Journal of Chinese Studies.

"It's not going to increase civil liberties, civil rights, or things of that nature," Bellows said in an interview.

The official English-language China Daily cited hopes among analysts that the rule of law "will create a more transparent and fairer business environment for the private sector and foreign investors."

"Strict and standardized law enforcement and an efficient judicial system and professional judges and procurators will help promote social fairness and justice," said Chang Jian, Barclays Plc chief economist in Hong Kong, according to the paper.

'These will help to improve market efficiency," he said.

Bellows expects more clarity from Chinese courts, which are now required make written decisions public, but that does not necessarily mean they will be free from outside influence.

"The fact is that they are not in any way going to challenge the supremacy of the Communist Party in China, so that means no independent judiciary," said Bellows.

Foreign firms targeted

One recent measure of legal fairness has been the wave of antitrust cases and fines brought against foreign automakers and multinational corporations in China between July and September this year.

While Chinese authorities denied targeting foreign interests, the investigations drew criticism from business groups including the American Chamber of Commerce.

Although many foreign firms paid fines or were forced to lower their prices, none were reported to have contested the charges in court, suggesting little confidence in the system.

Bellows said foreign investors will have to weigh their chances carefully before seeking recourse to Chinese courts.

"If the auto companies see a glimmer there, they may reconsider appealing. If an appeal is going to hurt them more in the future, no," he said.

Gary Jefferson, a Brandeis University professor of trade and finance, said the foreign companies are likely to have chalked up the anti-monopoly fines as a "cost of doing business," despite their concerns about fairness.

"I haven't heard of anyone packing up and leaving," he said.

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Anonymous Reader

At most, the PRC uses rule by law, not rule of law. Law under CCP authoritarian rule is an intentionally vague instrument that is wielded to prop up monopolistic control of the government, military, courts, media, and police by the Communist Party and for the sake of the Communist Party.

Nov 08, 2014 08:58 PM

Anonymous Reader

Actually, law is always to some degree an instrument for controlling the citizens. However, there are obviously degrees of difference and of kind. When I was attached to the US Embassy in Seoul years ago, one American lawyer pointed it out this way: "In the US, the major function of law is to protect citizens from each other and from the government. In the ROK, the main function of law is to allow the government to control the citizens, and also to protect the citizens from each other."
But it's not just Korea, obviously; in the US context, "You can't fight City Hall." The US is now seeing massive legal shifts toward favoring corporations (after all, they now own the lawmakers) and restricting voting rights for the non-elites. (Keep in mind that the US Constitution does not include the right to vote.) Plutocracy can actually control the people more subtly and effectively than a single party state can; plutocrats can buy votes and propaganda, actually convincing the non-elites to vote against their own best interests. It will be interesting to see if the CCP moves in this direction as wealth accumulates in a tiny segment of the population.

Nov 05, 2014 12:07 PM

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