Centralisation of Power in the Pursuit of Law-based Governance

Abstract

Legal reform has been a prominent point on the agenda since Xi Jinping took over the leadership of the Chinese Communist (CCP).(1) At the Third Plenum of the Party's 18thNational Congress in 2013, Xi proposed pursuing four strategic political goals under the slogan Four Comprehensives (sige quanmian ). Two of the political goals, namely, to comprehensively strengthen discipline of the Party (quanmian congyan zhidang) and to comprehensively the country according to the (quanmian yifa zhiguo), set the grounds for the latest round of legal reform.The Central Leading Group for Deepening Overall Reform (Zhongyang quanmian shenhua gaige lingdao xiaozu) was set up to carry out the Four Comprehensives. Deepening judicial reform in the direction of building a just and efficient judiciary that the citizens can trustis regarded as an integral part of the plan to the country according to the law.(2) In fact, 13 out of the 19 plenary sessions of the Leading Group involved the topic of judicial reform from 2014 to 2015.(3)The call for ruling the country according to the can be dated back to September 1997, when Jiang Zemin at the 15th CCP's National Congress addressed the need to construct the socialist state in accordance with the law (jianshe shehuizhuyi fazhi guojia).(4) In recent years, the Chinese term fazhi ?? has re-emerged frequently in public discourse. Yet, observers of Chinese politics realise that the concept of fazhi by the Xi administration might not be best captured by the notion of rule of law, but would be better interpreted as rule by law. This article is intended to chart the details and implications of legal reform in the broader context of the pursuit of law-based governance and discusses the notion of fazhiunder Xi's leadership.A legal system dominated by the CCPThe Chinese legal institution is comprised of the Supreme People's Court (SPC), the Supreme People's Procuratorate (SPP), and the Ministry of Public Security, together with their relevant local agencies. Constitutionally, the National People's Congress (NPC) exerts oversight over the SPC and SPP, but such oversight is more nominal than substantial. A distinctive feature of China's legal system is the presence of the Central Political and Legal Affairs Commission of the CCP and its local Political and Legal Affairs Committees (PLAC) to ensure the Party's dominance over the legal system. The PLAC is vested with extensive power to oversee the courts and other legal institutions at both the ideological and organisational levels.(5) It has a record of occasionally interfering in criminal cases,(6) and of allowing the bureau of public security to overshadow the procuracy and the court in the legal process.(7)The extent of the PLAC's power raises concerns about the vulnerability of judicial decisions to undue external influence as well as the risk of convicting innocent persons given the urge for local officials to close cases in order to achieve political targets.(8)Observers point out that judicial corruption and wrongful convictions were particularly commonplace during the tenure of Zhou Yongkang as Vice-secretary and Secretary of the Central PLAC (2002-2012). (9)The presence of the PLAC entails the question of the ambiguous relationship between the CCP and state laws. As Prof. Fu Hualing argues, the foundation of the constitutional order in China is the of the Party. This political reality places the Constitution over the state Constitution, although CCP cadres are supposed to act in accordance with the legal framework they have created. (10) In this sense, the CCP politically transcends the legal system, and the responsibility for disciplining CCP cadres lies principally with the Party's Central Commission for Discipline Inspection (CCDI). Indeed, incriminated cadres are placed under investigation through an extra-legal procedure called double designation (shuanggui), where they are held in a designated place at a designated time until it is decided whether to expel them from the and/or hand them over to the courts. …