Squaring the Circle: Rule According to Law in a One-Party State

The greatest dilemma facing the Chinese government in its long-standing efforts to build an effective legal system is how to ensure both the integrity of the judiciary and the Communist Party's monopoly of power.

In the early days of the reform, Deng Xiaoping, the late paramount leader, opted for a pragmatic strategy. While insisting on the party's political supremacy, Deng pushed hard for the development of commercial laws that would lay the basic framework of a market economy and attract foreign investment. His immediate successor, Jiang Zemin, took a bolder step forward, at least rhetorically, with his declaration of the goal of "rule according to law." This new concept straddles the middle ground between "rule of law" (limiting the power of the state with law) and "rule by law" (using law as an instrument to rule the people). Regrettably, Jiang's "rule according to law" has never been translated into actual institutional reform, and has remained essentially a buzz word.

Mr. Xi Jinping, the general secretary of the Communist Party of China, has now put his own political capital behind a new and ambitious program to rebuild a legal system under the same principle of "rule according to law." The CPC Central Committee's 4th plenum, which was concluded on October 23, formally endorsed a document, "The CPC Central Committee's Major Decisions on the Comprehensive Implementation of Rule According to Law."

Based on the published text of the document, the proposed reforms will significantly transform the legislative process, promulgate new laws, and restructure the judiciary. As with typical Central Committee documents, the 4th plenum's "Major Decisions" contains mostly declarations of general principles and objectives. However, this document has several more specific proposals of institutional change that, if implemented, will reshape China's judicial system.

Among the reforms endorsed by the plenum, six concrete institutional changes affecting the judiciary deserve special attention: the establishment of a system designed to restrict and hold accountable CPC and government officials who interfere in judicial activities; an experiment to separate the adjudication from enforcement (intended to minimize conflict of interest and corruption); the establishment of circuit courts under the Supreme People's Court; exploration of the establishment of courts and prosecutors' offices that have jurisdictions over multiple provinces; exploration of the establishment of a system of public interest litigation by prosecutors' offices; and the implementation of a trial-centered litigation system that will also hold judges accountable for their decisions.

These proposed reforms are intended to accomplish two key objectives. One is to limit the scourge of "local protectionism" in the Chinese judiciary. The current Chinese court system is highly vulnerable to political inference from local authorities, which control the appointments of judges and the budget of local courts. The proposed establishment of a system that will record acts of judicial inference by local officials and hold them accountable is obviously one tool to discourage such conduct in the future. The other two proposals -- new circuit courts under the Supreme People's Court and likely experiments with courts and prosecutors' offices holding jurisdictions over several provinces - are measures intended to limit provincial authorities' ability to interfere in judicial proceedings.

The other critical objective is to strengthen the power of judges. The court system will be increasingly trial-centered. Witnesses will be called to testify in person and, presumably, be subject to cross examination. At the moment, trials are relatively brief, even pro forma, and judgments are decided by a committee of judges, most of whom do not attend the trial proceedings. Judges and prosecutors will enjoy greater protection as well. The document declares that no judges or prosecutors can be removed without legal cause or due legal procedures. But to prevent replacing "corruption by committee" by "corruption by judges," the proposed reform will institute a system that will hold deciding judges permanently accountable for their decisions.

Taken together, these proposals clearly amount to the most ambitious legal reforms since the early 1980s. But crucial political and technical questions remain. Some of these technical issues, for example, the constitutional status of the circuit courts under the Supreme People's Court, will have to be sorted out. New laws and even constitutional amendments will be required to formalize the proposed reforms.

The most challenging obstacles to these proposed reforms are political. Curiously, the 4th plenum document does not mention the party's "politics and legal committees," which oversee the judiciary and other law enforcement agencies. Today, these committees decide on appointments of judges and frequently make interfere in judicial matters when important political and economic issues are at stake. It seems that these committees, at least the local level, will have to surrender their power over the judiciary if the proposed reforms are to succeed. This would be an almost unthinkable political breakthrough.

Similarly, the idea of cross-provincial courts and prosecutors' offices is revolutionary. But the plenum has made only vague commitment to their establishment. One can imagine that provincial governments are unlikely to be happy with surrendering their judicial and prosecutorial power to bodies over which they have no control.

Finally, the transformation of the adjudication system into one based on trials inevitably raises the question of the appointment of judges and the amount of autonomy they will have. Unfortunately, the document does not propose reforms that will change the current system of appointment of judges.

All these challenges merely underscore the fact that Mr. Xi faces the same dilemma that confronted his predecessors: establishing an effective legal system without threatening the party's rule. The 4th plenum has raised both hopes and doubts about his chances of success. For the moment, let us hope that Mr. Xi can square the circle -- at least more successfully than his predecessors.

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