ONE of the great enduring questions with which the Chinese Communist Party grapples, and that President Xi Jinping has made central to his leadership, is how to use the law to help the party rule the country. The party sees the law as one of its tools; an instrument meant to help strengthen, rather than check, the power of one-party leadership.
That was the message of the plenary session of the party’s Central Committee that ended on October 23rd after four days of deliberations about “socialist rule of law with Chinese characteristics”. The meeting’s official communiqué repeatedly notes that the law is firmly under “the party’s leadership” (summary in English here). But it also mentions steps that are intended to make China’s judiciary more credible and legitimate.
Doing this without making courts independent in the Western sense is quite a trick. How does Mr Xi intend to do it? First, he is trying to make it less appealing and more difficult for local officials to interfere in cases. Chinese local courts are notoriously beholden to local officials, who have great power over court budgets and over the careers of judges. This makes the courts ripe for the sort of meddling that infuriates citizens, especially in cases already involving the abuse of power, such as land grabs in which local officials and their friends appear to be benefiting.
The communiqué says that the party will now assess how much officials interfere in cases and that this will affect evaluations for their promotion. Carl Minzner of Fordham Law School notes that these evaluations are one of the few means the leadership has “to affect the behaviour of local officials”. In addition to Mr Xi’s aggressive anti-corruption campaign (which continues unabated), they give officials some incentive to behave. Judges, too, are to bear “lifetime responsibility” for case decisions, the communiqué says.
New courts will also be convened that cross jurisdictional boundaries; their judges, in theory, would not be so easily beholden to local officials. The party is already beginning pilot schemes in some areas, including Shanghai, involving the appointment (and funding) of court personnel by higher levels of government. The communiqué says that the Supreme People’s Court, the country’s highest court, will also set up “circuit courts” around the country—another step toward centralising judicial power.
The trend toward centralisation may help explain the prominent mention of “rule by constitution” in the communiqué. China’s constitution includes protections for free speech and private property, but it has rarely been taken into account in court rulings. Qin Qianhong, a constitutional scholar at Wuhan University, believes the plenum may change that and herald an era of “constitutional review” (here, in Chinese). Constitutionalism has been a term of suspicion for much of Mr Xi’s tenure because of concerns it could be interpreted as a check against the party’s authority and be used by legal activists and dissidents to push for more freedoms. The party does not want to grant any such licence; people who independently challenge the party are often punished harshly (in the case of Ilham Tohti, a university professor who criticised the party’s ethnic policies, with a life sentence in prison). But constitutionalism under “the party’s leadership” could be a way to give the Supreme People’s Court in Beijing more power over local courts.
In short Mr Xi is seeking to do with the law what he has done with other tools of leadership, from anti-corruption measures to economic policymaking: centralise and tighten control of institutions and instil party discipline. An editorial in Global Times, a party-affiliated newspaper, argues that the principal aim of the plenum was to “rein in officials” (here, in Chinese). An important party body dedicated to this aim, the Central Commission for Discipline Inspection, convenes a plenary session on October 25th. It is possible the session might discuss the case of China’s former security chief, Zhou Yongkang, the highest-ranking former official to be detained in Mr Xi’s anti-corruption campaign.
The Central Committee plenum has put Mr Xi’s own stamp on a system over which Mr Zhou held sway for five years until he retired in 2012. He was the member of the Politburo’s Standing Committee responsible for running the entire legal apparatus, from the police to the courts. Mr Zhou’s ability to amass great power under China’s “collective leadership” model may help explain Mr Xi’s much more assertive approach to leadership—which Mr Minzner argues includes taking responsibility himself for control of the legal apparatus and the party structures that control it.
Mr Xi has quickly become, to all appearances, the most powerful leader since Deng Xiaoping. The communiqué reinforced this perception. Its reference to a “series of important speeches by Xi Jinping” elevated his utterances to the canon of officially accepted works. His predecessors Hu Jintao and Jiang Zemin have been so honoured, but Mr Xi is the first leader to be named personally in this kind of invocation since Deng Xiaoping. It is a reminder that the rules China is playing by, in law and in other areas, belong not just to the party but also to Mr Xi.