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
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
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