Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Thursday, October 23, 2014

China’s Fourth Plenum Communiqué: Little Sizzle, Less Steak

You can’t call something a disappointment if your hopes weren’t high to begin with. And that sums up the official communiqué of the just-completed Fourth Plenum of the Chinese Communist Party’s Central Committee, a meeting dedicated to discussing the legal system and its place in China’s political order.

The official term for the plenum’s topic was “yi fa zhi guo”, variously translatable as “governing according to law,” “rule of law,” and “rule by law.” Few observers expected radical proposals – for example, institutional changes that would make the Party itself more accountable to legal norms – and the communiqué confirms these low expectations. For the most part, the communiqué is long on platitudes and short on specifics. (To be fair, that’s common in documents like this; specifics may be in the Fourth Plenum’s official resolution, which has not yet been released.)

Still, the communiqué does contain meaningful reform proposals that are specific enough to constitute an agenda. For example, it endorses the idea of courts whose jurisdiction will span current administrative boundaries as a way of reducing local protectionism; at present, judges at a given administrative level owe their positions and salary to political power at the same level, and thus are inclined to follow orders where local interests are concerned. Puzzlingly, it fails to mention another reform with the same object that was proposed at last November’s Third Plenum: putting all courts below the Supreme People’s Court under the control of provincial (and not lower) authorities. This reform does not challenge the principle of Party supremacy and is just a way of making authoritarianism work better. It is a bad sign for the leadership’s program if even this has run into obstacles.

The communiqué also endorses the idea of giving public prosecutors jurisdiction to bring public interest suits outside the criminal sphere – for example, suits against polluters. This liberalization must be understood, however, against a background of policy that severely disfavors – sometimes with intimidation and jail sentences – private parties who attempt to implement social policy goals through litigation. In the view of the Chinese state, determining and implementing social policy is the government’s business, not the citizens’.

One intriguing proposal is to “make the trial the center” of litigation. In other words, matters litigated should be decided at the trial itself, not before the trial in opaque, out-of-court processes. At least in criminal trials, this would be a major change from the current practice, where a case typically does not get to the trial stage unless the authorities, including the court, are satisfied as to the defendant’s guilt. (The current conviction rate is over 99%.) A process of guilt determination is not necessarily unfair, of course, simply because it happens before a proceeding labeled “trial,” but make no mistake about it: the trial is at present more the effect than the cause of that determination.

Finally, the communiqué endorses the strengthening of a constitutional review and interpretation mechanism. As a practical matter no such mechanism currently functions; the constitution is, legally speaking, almost a dead letter. But the communiqué uses verbs such as “strengthen” (jianquan) and “perfect” (wanshan), implying that such a mechanism is already in place, and just needs to work better. It is hard to avoid the conclusion, then, that major changes to the role of the constitution in the legal and political system aren’t in the cards.

This is about as earth-shaking as the communiqué gets. There are other proposals – reduce the incidence of powerful officials interfering in cases, increase transparency, reduce corruption in courts – but they are mom-and-apple-pie goals that are neither specific nor new.

Lest anyone get the wrong idea from even its modest reform proposals, the communiqué takes care to stress, at length and in several places, that the leadership of the Party over all aspects of the legal system is to continue as an absolutely unquestionable and unshakeable principle. Indeed, the communiqué calls for strengthening Party leadership in a number of areas, although this is likely just rote and meaningless language; it is hard to see how Party leadership over the legal system could be further strengthened beyond what it already is. And in language reminiscent of the famous “Three Supremes” which judges a few years ago were asked to observe – the supremacy of the Party’s mission, the people’s interests, and the law – the communiqué declares the policy goal of developing a corps of judges who will be loyal to the Party, the state, the people, and the law. Nothing is accidental in the language of a Party communiqué, and the word order here is no exception. As always, the Party comes first.

http://lawprofessors.typepad.com/china_law_prof_blog/2014/10/chinas-fourth-plenum-communiqu%C3%A9-little-sizzle-less-steak.html

Commentary | Permalink

Comments

Interesting article in to-day's New York Times (Oct. 24) distinguishing rule of law from rule by law.

Posted by: Frankie Fook-lun Leung | Oct 24, 2014 9:39:39 AM

Post a comment