The Decision to the recent Fourth Plenum raised more questions than it solved. A few weeks ago, we organised a roundtable discussion in Oxford, to explore the implications of the plenum on future scenarios for reform in the legal system, and for broader questions of political stability. Adam Knight, a final year Chinese Studies student, wrote the following round-up.
The outcomes of the fourth plenum have left many observers with a sense of frustration – such high level political documents tend to throw up more questions than answers. Indeed, it was with this disclaimer that Rogier Creemers kicked off a roundtable post-match analysis on the fourth plenum in the newly-opened China Centre at the University of Oxford.
Dr Creemers was joined by a host of other China legal experts and an audience containing a range of combined experience, from interdisciplinary academic peers down to lowly undergraduates such as myself. Here, I attempt to bring together some of the key theses to have emerged from that discussion and reflect upon some of the biggest questions thrown up by the fourth plenum.
On an initial read through of the communiqué published off the back of the plenary session – Creemers’ translation of which is provided on this very blog – certain romanticised but generic phrases jump off the page and, to an extent, mask what some have interpreted to be a greater commitment to judicial professionalism and independence, due process, and increased legal scrutiny. Phrases such as “the law is an important tool for governing the country”, “fairness is the lifeline of the rule of law”, or “authority of the law springs from its endorsement in the people’s hearts.” But what do these rather sweeping statements mean in practice?
Perhaps the clearest observation to emerge from the many insightful comments made during our discussion was that the outcomes of the fourth plenum are unlikely to lead to any loosening of Party control. On the contrary, the fourth plenum promises a continued emphasis on the leadership of the Party over the state. In the words of the original communiqué; “leadership of the Party is the most essential characteristic of Socialism with Chinese characteristics, and the most fundamental guarantee for Socialist rule of law…We must strengthen and improve Party leadership over rule of law work.” Put simply, rule of law in the Western sense of the concept is regarded as either unsuitable or unimportant within a Chinese context by the country’s leaders. Why is this? Beyond the obvious ideological conflicts, panel member Mayling Birney of LSE sought to frame the blatant relegation of true rule of law as an example of prioritisation typical in Chinese politics. Birney argues that a ‘third way’ exists between rule of law and rule of man, a system in which the Party is governed by priorities rather than by law, but that enlists the law to realise those priorities. This rule of mandates, as she terms it, was further reinforced by the fourth plenum as genuine rule of law continues to be trumped by other political urgencies. Indeed, looking back over the original text of the communiqué, there is a clear ranking of priorities that consistently places Party leadership above rule of law. Even when discussing ‘professional ethics’ in the implementation of the law, the document calls for “rule of law work teams who are loyal to the Party, loyal to the country, loyal to the people, and loyal to the law”, presumably in that order.
This begs the question, why would the Communist Party hold a ‘rule of law’-themed plenary session when it seemingly has little interest in furthering the rule of law in its truest sense? To put it bluntly, what was the point of the fourth plenum? The second key theory to emerge from our roundtable discussion was that the fourth plenum was an attempt to redefine the very meaning of rule of law in China. Since the introduction of contemporary debate on the rule of law in post-reform era China, the term has, according to Eva Pils of King’s College London, been popularised to the extent that it can no longer simply be retracted from or ignored in Chinese legal discourse. Pils speculates that the focus on rule of law, in this instance, was an attempt to establish a counter definition to Western understanding of the concept. The Chinese Communist Party is looking to recapture the momentum of rule of law discourse in China by presenting an explicitly non-Western, non-liberal, non-universalist definition of the term. It hopes to occupy the ideological battlefield in a manner reminiscent of Mao’s musings at Yan’an. So how does the Chinese government define rule of law in this sense? In its own words, “the leadership of the Party and Socialist rule of law are identical, Socialist rule of law must persist in the leadership of the Party, the leadership of the party must rely on Socialist rule of law.” This binary relationship between Party and rule of law in reality emphasises the dominance of political power over legal power as well as a system in which rule of law can be much more explicitly subordinated to the power of the Party state.
With this in mind, the third take away point to come out of the discussion was that the fourth plenum does not really represent anything particularly new in practical terms, and was in fact simply a restatement of what we already know. This was certainly the view of Ewan Smith from the University of Oxford. Indeed, he argued that not only did the fourth plenum fail to deliver any kind of meaningful reform, but that it was not even supposed to. The decisions made at the plenary session represented a mere continuation of the accepted Party line without challenging its previous incarnations. If we take the rather longwinded preamble to the communiqué, typical of any Chinese political document, the rule of law, as defined above, is presented as an extension of the Party’s recent history. The text opens by establishing a narrative that begins with the third plenum of the 11th Central Committee in 1978 and seeks to portray rule of law as simply being the latest instalment in that narrative. It is precisely because of these historical precedents that Smith has doubts. He encouraged the audience to carefully distinguish between ‘announce-ables’ and ‘deliverables’ in Party speeches. His opinion is that the Party’s focus on rule of law is primarily for show, a kind of appeasement that in reality will be rarely implemented. The excitement surrounding Xi Jinping’s declarations here is little different to the enthusiasm that surrounded the first wave of ‘announce-ables’ in Hu Jintao’s presidency. As such, Smith remains unconvinced that the statements made in the communiqué will actually lead to any kind of substantial reform. The fourth plenum represents a simple restatement of what we already knew.
So where does economic growth fit into all this? Over the course of our discussion, the economy certainly proved to be one of the more popular themes. This perhaps reflects the often indistinct relationship between top-level government policy and its impact on business. China has always been held up as an exception to the commonly-held mantra that rule of law is needed for sustained economic growth. Its government has been able to consistently supress the human rights of certain portions of its population, whilst overseeing a transformation of its economy over the last few decades. This is of course coupled with flagrant infringements of intellectual property rights and a sometimes haphazard approach to commercial law. This has of course improved in many urban hubs across China, but as Creemers pointed out, the outcome of a lawsuit against a company in a smaller provincial ‘one-company town’ is still pretty predictable. It strikes me, however, that even small changes in the legal system as laid out in the fourth plenum will in theory allow business to feel more confident in speaking up on international and some domestic legal matters. This will presumably create a more stable business environment and encourage both inbound and outbound investment in China, thus fulfilling an important national strategic objective.
Unusually, China’s 1982 constitution also featured prominently in the communiqué of the fourth plenum. This was particularly unexpected as mentions of the constitution had been deleted from the records of Xi’s previous speeches. The communiqué contained lines such as “we must…ensure that every piece of legislation conforms to the spirit of the Constitution” as well as “we must first persist in governing according to the Constitution.” This stands in stark contrast to the effective blacklisting of constitutionalism as a political concept in recent years. Will this mean greater adherence to the uncharacteristically liberal aspects of the constitution, such as freedom of speech and worship? Probably not, if we are to believe the cynicism of Smith’s argument regarding ‘announce-ables’. Yet the re-inclusion of the term is noteworthy nonetheless. It will be interesting to see how the concept is dealt with in future political contexts.
So what of the big question – what does the fourth plenum mean for the future? Will it change anything? The atmosphere during the roundtable discussion was on the whole one of scepticism. However, Peng Chun from the University of Oxford did argue for a degree of optimism. While the document is by no means ideal, it does present three conceptually new dimensions that should not be overlooked. The first is the fusing of Party leadership and rule of law. In theory this implies that the Party will rule through law and that power is based on law. Secondly, the communiqué implies a commitment to the notion that every Party agent must conform to the law. The third and final cause for optimism is a reinforced relationship between the Party’s internal laws and wider national legislation. The hope is that Party rule will be consistent with the law and that future normative documents will be instituted by constitutional mechanisms. The degree to which these theoretical aspects are implemented remains to be seen. The cynicism of other panel members, however, was clear. There was a general expectation that the fourth plenum should mean legal decisions will now be slightly less arbitrary than they have sometimes been in the past. Beyond this, however, not many audience members believed that the fourth plenum would lead to anything of any true worth.
I am left with the closing thoughts of Ewan Smith in mind; while the implementation of any kind of legal reform may remain frustratingly slow in the wake of the fourth plenum, it will be impossible for the Chinese leadership to continue endlessly discussing rule of law without there being some kind of future change. Much like every other aspect of the plenary session, only time will tell how significant that change will be.