Summary: Critically Queer / Judith Butler - part 2

 Xi Jinping at Fourth Plenum, Beijing

Introduction

From 20 to 23 October, the Fourth Plenum of the Central Committee of the Communist Party of China convened in Beijing. The fact that the meeting was devoted exclusively to the Rule of Law was remarkable by itself. Below we will explain why the outcomes of the meeting are so important. We will do so after having explained the status of the 'Fourth Plenum'.  

The status of a Fourth Plenum

Since 1982, when the Constitution abolished lifelong tenure for leadership positions, Communist Party officials serve for a five year period. Since 1978, the Central Committee of the CPC has consistently held seven meetings, called 'plenums' during this term of office. Traditionally the First and Second plenums are devoted to filling the positions within the CPC and state organs.

The Third Plenum traditionally lays out the “big agenda” to be pursued by the Central Committee. Not surprisingly, Third Plenums have traditionally served as significant turning points for the course of the CPC. Thus, in 1978, the Third Plenum of 11^th Central Committee decided to put an end to “mass class struggle” and to “make China a modern, powerful socialist country before the end of this century”. In 1993, the Third Plenum of 14^thCentral Committee formally endorsed the “socialist market economy”.

Historically, the Fourth Plenum focuses on strategies to be adopted in order to achieve the goals that have been set by the Third Plenum. Accordingly, the Fourth Plenum of the 11^th Central Committee in 1979 adopted a number of important rural and land reforms. The Fourth Plenum of the14^thCentral Committee in 1994 discussed how to strengthen the CPC’s leadership role during the introduction of a socialist market economy.

On 12 November 2013, the Third Plenum of the 18^th Central Committee adopted a reform agenda which listed 60 items aimed at deepening the reform. The Final Communiqué of the Third Plenum contains references to the traditional ideological sources, such as Marxism-Leninism, Mao Zedong Thought, and Deng Xiaoping Theory, but it stopped short of presenting the new philosophy of the Xi Jinping Administration. Therefore, the Fourth Plenum was expected not only to provide guidance on the implementation of the reform agenda, but also to lay out the ideology of General secretary Xi Jinping to guide the CPC. 

Embracing the Rule of Law

According to the Communiqué of the Fourth Plenum, the target of the Central Committee is  to build a country 'under the socialist rule of law'. This should lead to 'administration by law' and a 'law-abiding government'. This language goes one important step further that that used by the 15th Central Committee in 1997, which referred to 'building a socialist country ruled by law'. That language was mirrored in Article 5 of the Chinese Constitution, adopted in 1999, which stipulates that the People's Republic of Chinaimplements the rule of law and builds a socialist country ruled by law. 

According to the Communiqué, the Central Committee has committed itself to forming a system serving 'the socialist rule of law with Chinese characteristics'. Although it has undoubtedly been motivated by the intrinsic value of the Rule of Law concept, it is likely that other considerations also were taken into account. Thus, the Xi Jinping Administration has started a very visible and wide-ranging anti-corruption campaign, which targets both the 'tigers and the flies', i.e. both high- and low-ranking officials. This campaign can now be founded on the Rule of Law which will provide it with additional legitimacy.

In addition, it is clear that the Administration is keen on maintaining or even boosting economic growth figures on which its legitimacy depends to a certain extent. Embracing the Rule of Law will contribute to achieving this aim, since legal stability benefits the economy: it provides the legal certainty which people need to invest. The positive effect is not limited to Chinese companies but also extends to foreign owned ones, which will be even more eager to set up business in China. Thus, Charles Powell, who was Mrs. Thacher's foreign policy advisor and who now chairs the China-Britain Business Council, welcomed the decisions of the Fourth Plenum on the Rule of Law as being good for business.  

The Rule of Law may also assist the central government in keeping the local authorities in check and this too has an economic dimension. Local governments play a very important role in China also in the economic area. During the Deng era, their autonomy, also in fiscal matters, was enhanced, to unleash their economic potential. Consequently, the activities of local authorities increasingly have an impact on the economy, be it by running their own companies, by levying taxes, or by incurring debt. They also make a considerable contribution  to the revenue of the central government. The central government has some leverage through the promotion system of officials, but using the Constitution and the law as a correctional mechanism provides an additional safety valve.

The Constitution as core

The Central Committee has given centre stage to the Constitution. According to the Communiqué, the Constitution should be regarded as the core of the socialist legal system with Chinese characteristics. In order to realise the Rule of Law, the country should be ruled in line with the Constitution. This does not mean, however, that the Constitution will become justiciable or that Chinais about to introduce judicial review.

Currently there are two models for reviewing the constitutionality of legislation, i.e. judicial and political review. Judicial review was introduced by the U.S. Supreme Court in the well-known Marbury v. Madison case in 1803. Under this model judges are allowed to consider whether legislation is conformity with the Constitution and to declare it null and void when it fails that test. American style judicial review has spread to other parts of the world, especially to Europe. Political review is exercised by a body which is part of or set up by the legislature, which still has the final say. Thus, although the Constitutional Council in Francecan declare an act to be contrary to the Constitution, it is up to Parliament to translate this decision into a new law.    

Under China's current constitutional system, the introduction of judicial review is highly unlikely. The leading role of the CPC as guaranteed by the Constitution does not sit well with the Western concept of separation of powers or the authority of judges to overturn legislation. The 2001 Qi Yuling case, in which the Supreme People's Court proved willing to apply the right to education as guaranteed by the Constitution in a case brought against a public school, was regarded by some commentators as heralding a new era. However, the case was overturned by the Supreme People's Court at the end of 2008, and there are no signs that the Court is about to change track.

As the Communiqué makes clear, it will remain the task of the National People's Congress and its Standing Committee to supervise the implementation of the Constitution. However, according to the Communiqué, they are supposed to do a better job at it. Words matter in China, and it is a pubic secret that policymakers in Beijing are looking for ways to amply the political review of constitutionality of legislation, while leaving the power in the hands of the National People's Congress and its Standing Committee. Creating a review committee within the National People's Congress, comparable to the Comité Constitutionnel which was created by the Constitution of the Fourth French Republic, might be an option. The Comité had the authority to declare that a bill could only be adopted if the Constitution would be amended accordingly. The plenary Parliament was not formally bound by that decision, but it had a lot of explaining to do if it would decide to overrule it.

Interestingly, just after the Fourth Plenum had ended, a group of scholars led by Prof. Han Dayun of Renmin Universityin Beijing published an expert opinion on the interpretation of the Constitution. They suggest to enable all state organs, as well as all social organisations, enterprises, non-profit institutions and individuals to file a request with the Standing Committee of the National People's Congress for an interpretation of the Constitution. This suggestion, which leaves the political primacy of the National People's Congress and its Standing Committee intact, seems to have been inspired by the Chinese petition system, or xinfang, which dates back millennia. The publication of the expert opinion, which is based on the outcomes of a research project commissioned by the Justice Ministry in 2005, was very well timed. 

  

Enhancing the quality and the independence of the judiciary

The Central Committee has paid attention to increasing the quality of the judiciary. Thus, the protection of human rights in judicial proceedings will be enhanced. This is a response to a number of miscarriage of justice cases which have come to light recently. The judiciary will also be further professionalised by recruiting judges from the ranks of qualified lawyers and legal experts. This decision builds on previous measures taken to enhance the quality of the judiciary, like making the possession of a law degree a mandatory requirement and introducing a National Judicial Examination. In the meantime, politicians should take care not to throw away the baby with the bathwater. In a thought-provoking book, called  'Sending law to the countryside', Prof. Zhu Suli, the former Dean of Peking University Law School, makes clear that judges in rural areas are settling conflicts rather than engaging in interpreting and applying the law. For them acquiring mediation skills is much more important than being versed in the law. This is exemplified by a 2006 film called 'Courthouse on Horseback'.

The Central Committee also seems keen to increase the independence of the judiciary. Sometimes judges are put under pressure by local officials to find for them. Especially when these officials are part of the network, or guanxi, of the judge, this creates a dilemma: should one apply the law even to the detriment of those one is supposed to support? In the West it is assumed 'that justice must be done, even if heaven falls'. Equally, in Chinathere can be no doubt that judges will have to resist such pressure to maintain their independence. However, guanxiis a social institution of longstanding in China, which, in addition to undermining the authority of the judiciary, also brings benefits in terms of good neighbourliness and solidarity. It will prove very difficult to get rid of an established cultural practice even with the help of structural measures.

To relieve the peer pressure, the remuneration system for judges has already been changed: they are no longer paid by the local authorities but from the budgets of the central and provincial governments. To this the Central Committee now adds the possibility of introducing court districts that do not coincide with political units, which is likely to loosen the grip of politicians. In addition, officials who try to put pressure on the courts will be recorded and named publicly. Considering the tenacity of this problem, it will take a while before we will know whether these measures are effective, but they are certainly innovative and commendable.    

On which kind of law should the Rule of Law be based?

A question which still needs to be addressed is which law should serve as the foundation of the Rule of Law.

China has an impressive legal tradition which spans millennia. Since the early 20^th century , Chinese law has mainly borrowed from foreign systems, as was the case during the years of the Republic, from 1912 to 1949. However, not all Western concepts have proven to be acceptable. Shortly after Opening Up and Reform began, conservative factions within the Party initiated a so-called “Anti-Spiritual Pollution Campaign”, which targeted Western-inspired liberal ideas. Prof. Li Buyun, who is one of the "Big Three" pioneers who introduced the discussion on the importance of human rights and the Rule of Law in China, recalls that at the time he was required to criticize Western principles, such as 'prisoners’ rights' and 'presumption of innocence, as being harmful to the field of legal studies. However, this resistance to Western concepts, such as human rights, has receded since. Consequently, during the past 40 years China has developed an impressive amount of laws, which have mainly been enacted by the National People's Congress by incorporating Western transplants.

Some scholars have argued that this is not the best way forward. Prominent among those is Prof. Zhu Suli, who favours a contextual approach, which is aimed at studying law within its historical and social environment. As he explains in his book 'The Rule of Law and its Local Resources', the State should not push for the establishment of the Rule of Law by uncritically incorporating Western transplants through legislation. Instead, the Rule of Law should be founded on indigenous resources, i.e. the living law among the people today, their customs, practices and informal institutions, which have developed spontaneously in social life. Therefore, scholars should pay more attention to the existing and developing norms in Chinese society and not deny them the status of law simply because that is what Western thought prescribes. That does not means that the Rule of Law cannot be achieved. According to Prof. Zhu Suli, as a result of the enormous social transformation Chinahas undergone during the Twentieth and Twenty-first Centuries, we may be closer than ever to its realisation. But it takes time and should be stimulated bottom up rather than being enforced top-down.

Conclusion

Although the decisions taken by the Central Committee will still have to be translated into legislation by the National People's Congress and its Standing Committee, they represent an important shift which is likely to guide the policies of the Xi Jinping Administration for years to come.

Even ardent critics of China's record will have to admit that the Xi Jinping Administration is taking legal reforms very seriously, especially at the judicial level. This is also exemplified by the fact that the Standing Committee of the National People's Congress has recently released its draft Criminal Law amendment, in order to seek input from the general public on the removal of nine capital crimes.

Nevertheless, taking these formal decisions does not necessarily mean that things will automatically change on the ground. First, the strong will of the central government may be opposed by local government attempts to frustrate its implementation. Second, these changes also have to resonate in society. In that respect it is important to give as much room as possible to mediation, as well as to the customs and practices of the people when drafting the necessary legislation.     

Guest Post by Cong-rui Qiao & Tom Zwart (Cong-rui Qiao is a PhD Researcher at the Netherlands Institute of Human Rights and a Member of the School of Human Rights Research. Professor Tom Zwart is a Professor of Human Rights at Utrecht University and the Director of the School of Human Rights Research)

This guest post forms part of the insights obtained from the Cross-Cultural Human Rights Centre to which both authors are affiliated.