By PAUL GEWIRTZ
NEW HAVEN — Two weeks ago, with the democracy protests in Hong Kong in full swing, China’s
official People’s Daily newspaper labeled them“illegal” and called for
protecting “the rule of law” in Hong Kong. Such statements left
observers with little doubt about a central meaning “the rule of law”
has in the People’s Republic: the Communist Party’s use of law to
control and regulate society.
Yet
there’s plenty of evidence that China sees the rule of law in far more
nuanced and complex ways. Today the Communist Party’s 18th Central
Committee starts its Fourth Plenum, and the main topic will be the rule
of law in China — the first time in party history that a meeting with
the authority of a plenary session will focus on the rule of law. And
there are reasons for a measure of optimism that the plenum will
demonstrate more complex views about the roles law can play and also
take meaningful steps to advance new legal reforms.
Of course,
legal reform has major limits in China’s one-party authoritarian
system. There won’t be true judicial independence. All bets are off
whenever the party sees a threat to its continued power; steps toward
the rule of law don’t mean steps toward multiparty political democracy,
which China’s current leaders totally resist. When the plenum issues its
report, it will surely underscore that one central role of law is to
maintain social order.
But,
contrary to what pessimistic observers have predicted, the plenum is not
likely to treat law as merely a tool for the party to control Chinese
society, a throwback to the “Legalist School” of philosophy from 2,200
years ago which President Xi Jinping
seems fond of quoting. Chinese society and its legal system have
already changed too fundamentally for that, and the current regime led
by Mr. Xi has already signed onto many reforms and even adjustments in
ideology that represent positive steps toward a modern system of rule of
law. These changes aren’t just window-dressing; they reflect the
leadership’s recognition that it needs to improve governance, address
widespread public grievances, and respond to public opinion.
Consider
some legal reforms that have been made in just the last few years. Use
of the death penalty has been cut roughly in half, with improved
procedures for deciding on its use. A new Criminal Procedure Law has
been adopted, providing significantly more protections to suspects and
defendants. The odious system of “re-education through labor” has been
abolished (though, to be sure, what will replace it is still not clear).
A sea
change has taken place in government transparency, with important
requirements of open government information changing the relationship
between the state and citizens. Zhou Qiang, the strong new president of
the Supreme People’s Court,recently issued a five-year judicial reform
plan promising to enhance court independence from interfering local
governments, increase judicial openness and transparency, improve
fairness to individual litigants, and further professionalize judging.
Some
critics point to recent official statements demonizing
“constitutionalism” and ask how can China be serious about legal reform
if it denigrates or sidelines its own Constitution. In fact,
“constitutionalism” has become a code word for a specific idea:
importing Western political democracy, which China’s leaders will not
accept. But as for the Constitution itself, Mr. Xi recently called it
China’s “fundamental law” and said that to “govern the nation by law
means to govern in accordance with the Constitution.” China currently
has no effective mechanism for enforcing its Constitution — a major
deficiency — but at least that crucial topic is now being openly
discussed.
China’s
leaders see improving the legal system not simply as a way to control
society but as away to rein in wayward bureaucrats, insist that local
officials carry out national policies, establish rules of the road for a
more robust economy,provide peaceful ways for citizens to resolve
disputes and seek redress for grievances, reduce the corruption that’s
seen as the greatest threat to the Party’s continued hold on power — in
short, to constrain government itself, not just to control society and
contain social unrest. Mr. Xi may have been playing to the crowds when
he recently spoke of “locking power in a cage,” but it was a recognition
that the party needs to constrain some of its power in order to keep
it.
Moreover, China’s maturing legal
community, as well as ordinary Chinese citizens, follow these
developments carefully, so expectations have been raised. Failure to
deliver and actually enforce reforms would create a destabilizing push
back on China’s leaders. The most convincing reason for outsiders to be
cautiously optimistic about these developments is that many legal
figures within China, like the revered legal scholar and reformer Jiang
Ping, have written about the plenum with cautious optimism.
This is
not to say that China is about to abandon its preoccupation with “social
stability,” which too often means silencing or imprisoning peaceful
dissenters and activists who blow the whistle on some of the country’s
many woes, including environmental degradation, abuses of power and
needless policies against Tibetans and Uighurs..
But in the eyes of China’s leaders, social stability is what enabled
China to lift hundreds of millions of people out of poverty in a mere
few decades, generate huge economic growth, and peacefully re-establish
China as a major power among nations. The prospects for legal reform
will be greatly enhanced if China’s leaders come to see how the rule of
law itself contributes to social stability.
Above all,
we should recognize that every reform made or promised in China, even
in a regime that contains factions opposed to reform, provides an
opening for a large group of scholars, activists, reform-minded
officials, as well as ordinary citizens to push to implement the changes
and to find new openings for reform. The constraints are real, but so
are the dynamics for producing ongoing reforms.
Paul Gewirtz is a professor of law, and the director of the China Center, at Yale Law School.
