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'Rule by law'? The Fourth Plenum of the 18th Party Congress

'Rule by law'? The Fourth Plenum of the 18th Party Congress
Published 22 Oct 2014   Follow MLVarrall

On Monday, the four-day Fourth Plenum of the 18th Party Congress began in Beijing. Chinese state media says this year's meeting will deliberate on 'major issues concerning comprehensively advancing rule of law.' This is the first time the Central Committee has made this topic the focal point of discussions at a plenum, and there is great anticipation about how it might be addressed.

However, outside observers should be careful not to get too carried away with what this might mean for changes to Chinese governance.

Every Chinese Party Congress lasts for five years, during which there are seven major plenums at which the Party's Central Committee meets. The Fourth Plenum is generally where implementation of policies decided at the previous year's plenum are discussed. The Third Plenum of the 18th Party Congress was held in November 2013, at which a raft of political and economic reform policies were announced.

These policies exceeded many expectations – both in China and internationally – in their depth and breadth, including reforms to state-owned enterprises and the one-child policy. It was also announced that markets will play a much greater role in allocating resources, an important shift away from the 'basic' role they had before. The communique at the close of the Third Plenum included few details around timelines or benchmarks, and these are what are being addressed currently at the Fourth Plenum, in addition to the tantalising topic of advancing the rule of law. [fold]

Many China watchers are asking what this focus on rule of law actually means in the Chinese political system. The concept needs to be understood for what it means in the Chinese context. As explained very well in the Wall Street Journal, semantics matter. In Chinese, the term ?? (fazhi) is composed of characters meaning 'law' and 'to govern.' This is generally translated to 'rule of law' in English, but this creates (perhaps deliberately) a misperception about what can be expected. Some argue that 'rule by law' is a more accurate translation – that is, that the Party uses the law as it sees fit to govern and maintain its control.

Xi Jinping has emphasised the importance of respecting the law and the constitution. However, the Communist Party is not governed by the constitution. Rather, the constitution serves the Party.

Indeed, Nobel laureate Liu Xiaobo was jailed for 11 years for his role in Charter 08 (2008), in which he and others suggested the Party should come under the constitution. The Chinese Government sees 'constitutionalism' (that is, the primacy of a constitution over all else) as a Western phenomenon inappropriate for China. Over the past year or so, constitutionalism as a concept has come under increasing attack. For example, articles have been published arguing that constitutionalism is a product of capitalism unsuited to a socialist system, and against the idea of 'the constitution and the law taking precedence' (???????).

So 'rule of law' in China always means rule of law under the leadership of the Party, and that will not change in this Plenum.

When thinking about China, even when the language may sound familiar (and in the case of 'rule of law', reassuring), the underlying concepts are often completely different. The ultimate implications are not going to be what we expect if we take the terminology at face value. While there will very likely be some important and positive developments at this Fourth Plenum, we should not expect to see Chinese judges' decision-making suddenly de-linked from Party considerations. 'Comprehensively advancing the rule of law' does not equate to a separation of powers and a rollback of the Party-state's role in legal affairs. Rather, it should be understood as a sophisticated development in how the Party manages governance and control.

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