China And The Rule Of Law – OpEd
President Xi Jinping has placed great emphasis on the rule of law – but what exactly does this mean when the CPC plays the dominant political role in China?
This was the central question at an expert roundtable at the Madariaga Foundation on 4th of February. Gong Pixiang,Deputy Director of the Standing Committee and Member of the Leading Party Group of Jiangsu Provincial People’s Congress, was the main Chinese speaker. Professor François van der Mensbrugghe (ULB) and Benjamin Hartmann (Member, Legal Service of the European Commission) were the European commentators.
The roundtable was held under the background of the 4th Plenum of the 18th CPC Central Committee which was held last October and which focused on the rule of law. The CPC published a communiqué on “comprehensively advancing the rule of law in China” and a “Decision of the CPC Central Committee on Major Issues Concerning Comprehensively Advancing the Rule of Law” after the plenum. These documents promised to enhance court independence, judicial transparency, fairness to individual litigants, and further professionalise the judicial decision-making. The legal reform which is aiming to build “rule of law with Chinese characteristics” (中国特色的法治) or “rule by law” （依法治国）is one of the main themes of the “deepening reform” launched in 2013 during the 3rd Plenum of the 18th CPC central Committee.
The roundtable focus was on understanding the meaning of “rule of law with Chinese characteristics” or “rule by law” and how the legal reforms will be implemented.
Gong Pixiang stressed the importance of modernized law-making and the importance of gaining citizens respect with regard to legal reform.
Zhang Yansheng (Secretary-General, NDRC Academic Committee) elaborated on the relation between legal reform and economic reforms in China. He said that2013 and 2014 have already shown a different pattern of reforms in China. There is a clear trend away from manufacturing to the services sector. There is a new placed emphasis on innovation with cities like Shenzhen spending more than 4% of its GDP on R&D.
Both speakers agreed that it might take up to 35 years to establish the rule of law and a modern market economy. The main economic implication of legal reform in the next 35 years is that any economic reform should have a proper legal basis. These moves would help EU investors as they would enjoy a level playing field with their Chinese counterparts; they would enjoy improved property rights; and the whole system would be fairer and more transparent.
François van der Mensbrugghe challenged the concept of the “rule by law” in China, and the enforcement of the constitution. He said that although the constitutional rights have been the main theme of the CPC in its 93 years history, and the current constitution of China includes all the constitutional rights such as free speech and human rights, there is no specific means to enforce such rights. The rule by law in China is fundamentally different from rule of law. The rule of law promotes independence of the judiciary, prosecutors, and police and professionalized law making. Rule by law means maintaining the social order and pursuing public goods. Rule by law seems more about using the law to restrict the liberty of people – but not protecting the liberty of people.
Benjamin Hartmann took a similar view. From an EU perspective the rule of law means transparency, fairness; legal certainty; prohibiting arbitrage of administration; independent courts; judicial review; equality). He said that the new EU-China dialogue in the strategic partnership will have a session dedicated to legal affairs, to better understanding EU legal system and the rule of law in China. He hoped these dialogues would lead to greater mutual understanding.
Questions covered the relation between the CPC and the rule of law, the implementation of the documents from the 4th plenum and the implication of 4th plenum in the overall reform programme. The Chinese speakers did not give clear answers to these questions, since there is still no clear timetable after the 4th plenum.
The situation may be clearer after the March meetings of the Third Session of the Twelfth National Committee of the Chinese People\’s Political Consultative Conference (CPPCC) and the Third Session of the Twelfth National People\’s Congress (NPC). Measures for comprehensively deepening reform, including the legal reform will be the main topic in the two meetings. A timetable for legislation is also expected after the March meetings.
In line with deepening the reform, other topics such as anti-corruption, reform and innovation, income inequality, environmental protection, food and medicine safety, etc., will also be discussed.
Currently all provinces are holding meetings ((Lianghui) to provide local input into the NPC and CPPCC meetings in Beijing.