China’s rule by law, not of it
The Japan Times, 2 November 2014
By Kevin Rafferty – OSAKA – All the ballyhoo, the stepped up security, the media headlines, told you that something important was going on in Beijing the week before last. But in China’s typical way, the swirling debate at the meeting of the country’s 350 most powerful leaders at the Fourth Plenum was securely behind closed doors: Outsiders had to wait for the final communiqué and to be able to read between the lines of it.
The message is that China is embarked on a major reform dedicated, leaders claim, to improving the rule of law, but subject to the will of the ruling Communist Party. This is really rule by law, not the rule of law.
The subtext is that President and Communist Party leader Xi Jinping has not managed to get things all his own way, in spite of a new cult of personality around him.
Chinese media telegraphed in advance that the meeting last month would have “the rule of law” as its centerpiece. Xi himself had set the scene late in 2012 celebrating the 30th anniversary of the constitution, when he had declared that China must uphold as the highest law, which supposedly protects freedoms of speech, press, religion and general assembly.
Some liberals, notably lawyers, took this as a signal to demand substantial legal reforms, with some daring to suggest that these should include U.S.-style separation of powers between the legislature, executive and judicial branches of government.
Clearly that was a nonstarter, as Xi responded with a tough crackdown on activists calling for more freedom within the law, and with instructions to artists and writers to serve socialist ends.
Xinhua, the official New China News Agency, reported that the communiqué promised “advancing the rule of law and building a country under the socialist rule of law.” The leaders promised “ruling the nation in accord with the constitution” and “governing in accord with the constitution.” But — an immense but — Xinhua’s report started by stating: “The Communist Party of China leadership is ‘the most fundamental guarantee’ for comprehensively advancing the rule of law and building a country under the socialist rule of law.”
Paragraph nine of the communiqué, on “governing the nation with virtue,” stated: “To realize these goals [of ruling in accord with the law], [we] must uphold the leadership of the Chinese Communist Party, uphold the principle position of the people, uphold equality of all people before the law, uphold the combination of ruling the nation in accordance with virtue, upholding the [principle of] proceeding on the basis of China’s realities.”
Clear enough: The people may be theoretically the rulers, but the wise Communist Party knows best for the people. It fits in with a string of recent statements, including reactions to the democracy protests in Hong Kong, that the business of government is too important to be left to the great unwashed masses.
It is easy to be critical. Rebecca Liao wrote in the Financial Times that the “socialist rule of law,” as the party calls it, is a political oxymoron. The party elite, she added, had promised “the most comprehensive overhaul of the legal system since China opened its economy to international trade. The idea was to give a new sheen of legitimacy to a system tarnished by corruption and government dysfunction.”
Optimists believe that even by raising the issues of the rule of law and the need to improve the system is a sign of progress. But such optimism falters on the tight determination of the ruling party to maintain its grip.
The government’s talk of “rule of law” is “like a rooster dreaming that he can lay eggs,” Teng Biao, a prominent rights lawyer, wrote in Hong Kong’s Oriental Daily News.
He claims that China wants to use the law as a vehicle to control society. Without making the party accountable to the law and the constitution, the best that China can get is rule by law.
This offers a potentially frightening side to this coin. What if the legal system is made more efficient and therefore just becomes more brutal in enforcing the dictates of the ruling party?
There is no doubt that Xi sees a reformed legal system as a way of enforcing his campaign against corruption, where he has promised to catch both the “tigers,” the billionaires of the business, and the “flies,” the small fry.
But of course, the Catch-22 of this is that the judicial system has long enjoyed a reputation for being corrupt, with profitable interplay between courts and local officials.
Meanwhile, Xi himself is becoming the center of attention in China in ways not seen since the days of Mao Zedong. Official media has been busy developing what amounts to a new cult of personality. Last month, photographs taken 20 years ago of the younger Xi were released online showing an active man visiting and working on a farm, touring a factory and having dinner with members of an ethnic minority.
Essays and lectures by Xi originally published in 1992 and dealing with such topics as fighting corruption, understanding the people and responsibilities of good leaders were also put online.
Some China-watchers claim that this is no more than an attempt to present Xi, Western-style, as a human being not a stooge. A month after Xi took power, Xinhua published a profile of him titled, “Man of the people, statesman of vision.” It carried details about his wife and daughter and included photos of bicycling with his young daughter.
In the last few months Xi has continued to make public appearances as if he were a normal human being. He has been seen visiting a steamed bun shop, taking a stroll through a Beijing hutong, catching a taxi and telling the driver, “Everyone is equal, and I’m from the grassroots too.” He has even got a new nickname: Xinhua has taken to calling him “Xi Dada,” literally “Xi Bigbig,” but colloquially “Daddy Xi” or “Uncle Xi.”
Professor Willy Lam of the center for Chinese studies at the Chinese University of Hong Kong laments that Xi is “building a Mao Zedong-like personality cult, quite disturbing, turning the clock back.” His claim has some support from a study by media researchers at the University of Hong Kong.
They conclude that China’s state-controlled media have been promoting Xi with an intensity not seen since the days of Mao. In his first 18 months in power, Xi was mentioned in 4,186 articles in the first eight pages of the People’s Daily, whereas his predecessors Jiang Zemin and Hu Yaobang got fewer than 2,000 mentions in their first 18 months.
So Xi is more equal than other leaders. But China watchers say that the results of the Fourth Plenum also show that Xi is still far from becoming China’s new emperor. Kerry Brown, professor of Chinese politics at the University of Sydney, argued in his book “The New Emperors: Power and the Princelings in China” that the Communist Party is rather like the Catholic Church, a cultural/social/ideological entity, “an entity that demands belief of some sort from its adherents and pursues a broad spiritual vision (in this case a vision of a ‘rich, strong, powerful country’).” Brown says that if Xi tried to put his interests over those of the party, he would become toast quickly.
The blog China Bystander claims that the Fourth Plenum showed that Xi’s “drive to centralize power is not yet complete.” The plenum had been expected to approve a reshuffling of the central military commission to promote Xi’s allies, but it did not. Nor was there any mention of the fate of Zhou Yongkang, the former politburo standing committee member, the biggest “tiger” in Xi’s anti-corruption drive.
It is fascinating to watch and speculate, but it is all a reminder that China is a power that often doesn’t comprehend the rest of the world.
Key expressions like “democracy” and “rule of law” that underpin government and governance have been adapted in China so that they have different meanings from the accepted definitions in the West or Japan. Outsiders must take care in doing business with the Chinese dragon.
Journalist Kevin Rafferty lived and worked in Hong Kong for many years before and after it was returned to China.