Rule of law with Chinese characteristics

Written by Jackie Sheehan.

The decisions emanating from CCP plenums seldom contain surprises – the official communiqué will have been drafted before the session opens. The 4th Plenum of the 18th CCP Central Committee completed on October 23rd was no exception. The plenum’s conclusions on “comprehensively advancing the rule of law” were always likely to go furthest in concrete proposals for more legal accountability of power-holders at the local level and to get vaguer and less convincing the closer they came to the CCP leadership’s own exercise of power. Law Professor Carl Minzner’s prediction that “there was ‘absolutely zero chance’ that the party would impose meaningful legal checks on its own power” was always a safe one.

Although no-one spelled out that the party would remain above the law in practice, the difficulty in claiming anything else showed in some convoluted explanations of how rule of law applied to the central leadership. Centre Party School professor Xie Chuntao explained that “the nation’s legal system is established under the leadership of the Communist Party … therefore the party should follow the legal system it has established. This is in itself an important demonstration of the party’s leadership.” The plenum communiqué sidestepped the issue, concentrating on vague aspirations to “build a law-abiding government”, while only requiring the party centre to “improve its internal rules and mechanisms.”

According to Wang Xishan, head of the party’s internal police body, the Central Commission for Discipline Inspection (CCDI), “the Constitution defines the CPC’s authority and duties, but Party rules ask the CPC to exercise its power within legal boundaries and implement the law through its policy” – so CCP officials should take the lead in implementing and obeying the law pour encourager les autres, not because the Constitution compels them to be accountable in law. The plenum condemned party officials’ “replacing the law with words”, but the rash of recent convictions of activists, bloggers and the like for the playground-sounding offence of “picking quarrels and provoking trouble” shows the CCP government retains ample scope to deprive citizens of their liberty “because I said so”, with no real evidence of criminality having to be produced.

In the politically safer area of reforms to curb local officials’ abuses of power, the plenum’s proposals include removing the influence of local power-holders over courts by establishing circuit courts and moving responsibility for court funding and personnel appointments to a higher level, as well as naming and shaming local officials who attempt to intervene in court cases and cracking down on judicial corruption. A general effort to improve the quality of judges and prosecutors by recruiting more with legal qualifications is also a step in the right direction.

It was a mixed news week for the CCP leadership to announce its intention to “enhance the protection of human rights in judicial procedures”. The Duihua Foundation announced that China had executed 2,400 people in 2013, noting that although this was more than three times as many as the rest of the world put together, it still represented a 20% fall from the 2012 figure, and an 80% drop on the estimated total of 12,000 in 2002. That reduction reflects not only the removal of several economic offences from the list of capital crimes, but also the requirement for death sentences passed in China’s intermediate courts to be confirmed by the Supreme Court. As the Duihua Foundation report noted, 2014 might buck the recent trend for falling numbers of executions year-on-year because of Xinjiang’s “strike hard” campaign, and the Supreme Court only strikes down a small proportion of death sentences, but in the overall context of protection for defendants’ rights in China’s legal system, any incremental improvement is welcome.

Improving the transparency and credibility of the judicial system, a major element of the plenum’s concerns, is all very well, but what about China’s parallel justice systems: the “double regulations” (shuanggui) under which party members are investigated by the CCDI long before they are ever brought before a judge, and the “black jails” or “legal education centres” to which petitioners and other inconvenient individuals are dispatched without charge, trial or sentence? “Shuanggui” is not a privilege for officials; it takes them out of the legal system, permitting indefinite detention without access to a lawyer. Only when officials have confessed under the pressures of shuanggui, including torture, will they be passed on to the courts for formal conviction. The CCDI premises in Shanghai have rubber-lined walls to try prevent officials interrogated there from committing suicide by running into or hitting their heads against the walls, which hardly suggests an expectation of a fair hearing.

The 2013 abolition of China’s re-education through labour (RETL) camps was hailed as evidence of progress in protecting citizens’ rights, but a new report by China Human Rights Defenders confirms what many suspected: that the “black jails” mainly used to detain petitioners attempting to take their unresolved grievances to higher authorities are expanding their remit to replace RETL as a repository for individuals the party-state wishes to punish, isolate or silence without bothering to make a legal case against them. Detention in these ad-hoc facilities involves a high risk of physical and sexual abuse of detainees, a large majority of whom are female, and can last for years.

The 4th plenum communiqué made a great deal of the importance of the Constitution and of strengthening its implementation. In the interests of a more credible and transparent legal system less remote from the principle of “rule of law”, future plenums might pay particular attention to Article 37 on freedom from unlawful detention, which is clearly violated by both black jails and shuanggui, and Article 41, which stipulates that “Citizens have the right to make to relevant State organs complaints or charges against, or exposures of, any State organ or functionary for violation of law or dereliction of duty … No one may suppress such complaints, charges and exposures or retaliate against the citizens making them.” Going right back to the 1954 Constitution, the PRC has never lacked for civil rights on paper, but sixty years on, we’re still waiting for effective legal guarantees that citizens can exercise their rights. To have had a CCP plenum focusing on rule of law at all is significant, but it has not moved us any closer to those legal guarantees in practice.

Jackie Sheehan is Professor and Head of Asian Studies, University College Cork. She is a CPI Fellow and Regular Contributor to the blog. Image credit: CC by Charlene Wang/Flickr.