The red character headlines emblazoned across China's print media thus pronounced the symbiotic relationship between law and the Party after the recent Fourth Party Plenum.
Plenary meetings of the Party's Central Committee are held every year. Their pronouncements are invariably ideological and programmatic, but set the tone and policies for government in the coming years. The role of law in economic reform has long been a topic of plenary sessions, but this is the first time that law itself has been the central theme. So it is worth pausing for thought and examining the significance of the Fourth Plenum.
As the headline states, the core message from the Fourth Plenum is the relationship between law and the Party. This has always been a complicated relationship. Liberal thinkers in China as well as in the West have long viewed the Party's preeminence in policy making and government to be an obstacle to constitutional government, separation of powers and rule of law.
China's Constitution has been overhauled four times, most recently in 1982 when, in reaction to the political upheaval of the Cultural Revolution, the Party was made subject to the Constitution, but at the same time retained its exalted status as "vanguard" of the people. At this time, Xi Zhongxun (Xi Jinping's father) was Chairman of Legislative Affairs Committee of the National People's Congress (China's legislature) and went on to preside over China's golden era of post-Mao codification of law.
Arguments about the role of law in governing China have ancient origins, but there is one consistent theme from Han Feizi (China's most famous legalist philosopher, died 233BC) to the Chinese interpretation of Marxist doctrine to date: law is instrumental; it is a tool of government and in the hands of the ruling classes, it will determine what type of society we live in.
This instrumentalist view of law resolves any inherent theoretical contradiction in a symbiotic relationship between the Party and the Rule of Law because "Rule of Law" is not an end in itself, but merely a means to facilitate leadership of the Party and as a tool for Party rule. The significance of the Fourth Plenum is its emphasis on law as a tool of Party rule and government, not merely as a tool of economic reform, and does not necessarily herald any reform of Party institutions and their relationship with government and other organs of state power.
As the Dean of Qinghua University Law School, Professor Wang Zhenmin, explained the relationship between law and the Party to journalists after the Fourth Plenum:
"[Chinese] law is itself a legalization and systematization of Party policy; law is the Party policies for government that have been clarified by the legislature by the legislative process; Party policy is the soul and the foundation of the law."
Therefore, for example, when the Fourth Plenum talks about judicial independence, it refers to the malpractice of individuals in the Party or government who personally interfere in decisions of the courts and does not address the existence of the Party organizations within the judicial system that direct decision-making within the courts. Under the Chinese concept of judicial independence, such Party organizations will continue to provide leadership in the courts and every branch of state power as part of the "Socialist Rule of Law".
In 2008, Xi Jinping, then Vice-President, on his first official visit to Hong Kong, thus said:
"Our [Hong Kong SAR Government leadership] team shall sincerely cooperate, and the three organs – administrative, legislative and judicial organs – shall give each other mutual understanding and mutual support."
As the 1982 Constitution states, China is a socialist country in which the Party represents the interests of all the people to achieve a society molded by the Party's interpretation of Marxism-Leninism and Mao Tse Tung Thought. To some, these ideological tenets may seem outmoded in China's contemporary economic life, but they are still part of a core belief system that has simply been ignored or forgotten by many during the last 30 years of economic reform. The Fourth Plenum serves to remind us all that they are alive and well and that the "Rule of Law" with Chinese characteristics should be understood in its unique context.
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