President Xi Jinping. Demotix/Art Widak. All rights reserved.The Chinese Communist Party (CCP) has concluded its annual meeting of top-level officials: the Fourth Plenum of the Eighteenth CCP Central Committee, held from 20 to 23 October. President Xi Jinping called on them to “govern according to law”—the first time in history that the ruling party has made ‘rule of law’ the theme of this important annual session.
But the meeting also made clear that one fundamental rule will not change. The apex of the party will remain exempt from legal restrictions that might limit its political power and objectives, even as it tries harder to sell itself as an organisation that stands for social fairness.
China is not alone among authoritarian countries in appearing to embrace ‘rule of law’. Single-party regimes can use the law to promote not only economic growth but also political goals such as keeping their own party members in line, providing legal cover for sensitive decisions, controlling restive populations, and legitimating their rule. The CCP clearly expects law to do these things in China. According to an official statement made in the context of the meeting, “the rule of law is a must if the country will attain economic growth, clean government, cultural prosperity, social justice, a sound environment, and realise the strategic objective of peaceful development.”
Focusing on the law’s political functions, we see its use to control the party’s own agents, to delegate sensitive decisions, and to exercise social control. Leaders at the Fourth Plenum repeatedly called upon ranking officials to abide by the law, and the plenum’s decision warned that they will be held responsible if they “interfere in judicial activities and involve themselves in the handling of concrete cases.” For example, such interference often has occurred in cases challenging illegal expropriation of land by local governments or involving untreated pollution by politically connected factories. To rein in political interference with the courts, the party is turning to the same system of cadre monitoring that it uses to assess tax and environmental compliance.
The decision also highlights new roles for legal institutions—the Constitution and the judiciary—in particular. Public officials are now required to take a vow to uphold the Constitution when they take office. Judges themselves are to be scrutinised for correct handling of cases according to the law. In this way, the party seeks to strengthen parallel, legal institutions for monitoring official compliance. Legal institutions are fundamentally limited, however, by the overarching principal that the party—at least at the highest levels—is not subordinate to law. Despite stating that “all parties should abide by the constitution”, it also asserts that “the leadership of the party is the most essential characteristic of Socialism with Chinese characteristics and the most fundamental guarantee for Socialist rule of law.”
This party supremacy may also limit the second political function of law—that of providing cover for politically sensitive decisions such as prosecuting high officials for “grave disciplinary problems” like corruption. The recent decision to investigate Zhou Yongkang, China’s former security chief and former member of the Politburo Standing Committee, has been publicised to prove that the party will not let even top ranking officials operate “above the law.” This is supposed to illustrate that Zhou’s downfall is for criminal and not political reasons, even though the decision is controversial and probably results from a power struggle within the ruling elite.
The third political function of law—to exercise social control—is typically achieved by criminal law. The meeting’s decision calls for “strict, standard, fair and civilised law enforcement, punishment of all kinds of unlawful activities according to the law, [and] expansion of law enforcement strength in focus areas that relate to the masses’ direct interests.” Lu Wei, the chairman of the State Internet Information Office, the body in charge of China’s online control and censorship, immediately called for Chinese netizens to “respect rule of law”. This call evoked the regime’s crackdown on illegal “internet rumours” earlier this year, which many believe is a part of an effort to silence online critics.
It is not certain, however, that this effort to apply the ‘rule of law’ will truly legitimate the existing regime. The plenum’s decision calls for establishing a “Socialist rule of law culture” and “rule of law consciousness in the entire society,” specifically by deepening propaganda and education about the law. But such a programme is hardly new. Since 1986 the Ministry of Justice and the party’s Propaganda Department have been trying to popularise the notion of rule of law by using television, newspapers and other media to promote the concept. In 1994 this was followed by a state-led legal aid programme to give under-served and needy members of the population better access to the justice system, with the underlying goal of promoting the party’s right to rule. At a time when the Chinese public seems to believe party officials have lost their moral bearings and that official ideology is meaningless, Beijing feels the need to portray itself as offering a fair society with good governance.
Recent research in rural China shows how this appeal can help the party legitimise its rule, even though the propaganda programme promoting ‘rule of law’ has been slow to reach outlying areas. A team of researchers (including one of the authors) selected two similar rural communities and simulated the official propaganda programme in one, but not the other, over the course of a year. Household surveys in both communities, conducted before the year began and once again after the year was over, reached two conclusions.
First, intensive exposure to the media campaign did increase mass awareness of the law and legal institutions, or what scholars call ‘legal consciousness’. For example, those who experienced the media campaign were about 10 percent more likely to know about the availability of legal aid than respondents in the other community. They were also more likely to seek state-sponsored legal aid if they encountered a legal problem.
Second, and more strikingly, respondents exposed to intensive media content about ‘rule of law’ expressed greater trust in the local government. Respondents were asked to rate their level of trust towards the local government on a scale of 0 to 4 (with 0 being ‘least trust’ and 4 being ‘most trust’). Those who were exposed to the media campaign on average rated 2 to 2.5 higher in terms of the trustworthiness of their township and county government than those who were not. Since the government, through messaging via its official local media outlets and direct provision of local services like rural legal aid, is closely associated with the promotion of ‘rule of law’, it is not surprising that rural residents exposed to the media campaign attributed greater trustworthiness to the local government.
It is therefore not difficult to understand why the Party is promoting the notion of ‘rule of law’. So far the post-Mao party has justified its dominant role through so-called ‘performance-based legitimacy’, that is, providing economic wealth that benefits the vast majority. Yet with China’s declining economic growth rate and widening income inequality, this basic rationale is at risk. The increasing number of public protests across China against corrupt and self-serving officials reflects a worrisome ‘legitimacy deficit’ at the local level. Thus it seems timely for the party to change the basis for its right to rule from one that delivers economic goods to one that promises both the fairness and predictability that are currently lacking.
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