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China: Rule of Law or Rule by the Party?

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Since becoming the new leader of China in late 2012, Xi Jinping has publically advocated “依法治国,” which Chinese and Western media have often translated as the “rule of law.” However, many legal scholars and professionals, as well as observers familiar with Chinese political history, are skeptical that the country will be successful in reforming its legal system. The reason is simple: for a country controlled by the Communist Party, it is the Party, not the law, that rules the country.

Then, why does Xi Jinping, such a savvy and ambitious politician, keep talking about the rule of law?

There are two possible answers. One is that he really intends to install a legal system based on the “rule of law,” even though a precondition of such a system would be the removal of the Party’s superior privileges. The second and more likely possibility, however, is that Party officials and Western observers do not mean the same thing when talking about “依法治国.”

“依法治国” is a commonly used phrase in China to describe governing in relation to the law. When translated literally, it means “governing the nation according to the law.” This Chinese term can be interpreted in two ways: “rule of law” (putting legal responsibility over official power) or “rule by law” (where government uses laws as an instrument to accomplish its goals). This difference has been noted by scholars for decades, and it has been an important aspect of recent attempts to understand Xi’s new policies. As the Wall Street Journal asked in the fall of 2014, [1] when Xi mentions the need for “法治” (“law” and “governing” when translated literally), is he really calling for the “rule of law,” or “rule by law”?

English translations of the Party’s official texts and pronouncements have to decide what to do with these highly ambiguous terms. English editions of China’s state media, of course, tend to use positive-sounding terms such as “rule of law” without calling into question whether law will actually bind the Party’s own power or the power of Party officials.

Ultimately, though, all of the many pronouncements regarding legal reform leave one thing absolutely clear: It is the Chinese Communist Party (CCP) that currently dominates Chinese society, and it will not allow any challenges to its power. So when they use those terms, most of the time they mean “rule by law” – the Party’s use of law to rule Chinese society as it sees fit.

 

I. “Rule of Law” vs. “Rule by the Party”

Looking at Western legal history, the difference between the “rule by law” and “rule of law” is extremely clear. The former is the use of law as an instrument to serve political goals – but the question of who makes the laws, and whether they apply fairly and equally to all members of society, is not addressed. The latter is the principle that the nation, and all individuals and governing officials, must have equal responsibility to abide by the law of the land.

Considering this distinction, we can explore, by contrast, how China is governed:

 

A. Governing Ideology: “Rule by the Party” Instead of “Rule of Law”

As we saw above, the “rule of law” doesn’t just mean that laws exist and that they are followed, but rather requires equal and just laws, which are also applied equally and justly. Indeed, between the Roman columns of America’s Supreme Court building, there is one, simple inscription: “Equal Justice under Law.”

Under Chinese Communist Party rule, however, laws have never been applied equally. The nature of one-party rule is that the Chinese Communist Party (CCP), as opposed to the Constitution, is the highest governing authority and those who are considered “enemies” of the Party do not receive legal protection. The “Four Cardinal Principles,” [2] that Deng Xiaoping stated in 1979 and which have since become the CCP’s governing principles, defined four issues for which debate was not allowed in the People’s Republic of China. Among those four principles, the most important one is the “Principle of upholding the leadership of the Chinese Communist Party.” Those who call that idea into question are denied their legal rights – “Rule by the Party” is more fundamental than any law, regulation, or Constitutional provision.

 

B. Different Governing Methods: “Rule by Law” and “Rule by Authority”

“Rule by the Party” can, however, be carried out in different ways.

“Rule by law” is one of the approaches that the CCP uses. Of course, the Party has built its own mechanisms to ensure the “Party’s leadership” over legislation, how the law is interpreted, and how the law is enforced. “Rule by law” in China is in fact a Party-controlled “rule by law.”

However, only having “rule by law” is not enough for the Party to rule. The Party’s aims may change over time. Hence, its aims may not always be written into law and there may even be times when the Party’s aims contradict the law it had previously established.

Take the control of ideology as an example. The CCP absolutely wants to control people’s thoughts. In an open public debate, if other spiritual beliefs are considered, the Communist ideology might not stand and might even be considered sorely lacking.

The Party’s desire for thought control is illegal, however. Following modern (”rule of law”) countries, China’s Constitution guarantees freedom of religion. Article 36 of China’s Constitution states, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.” [3]

Therefore, as the CCP has to use other mechanisms instead of the law to control thought – “rule by authority” comes in handy. As the “authority” (primarily the Party committee at different levels) controls the state resources, it can use various means, from propaganda to Internet control, from promotion to withholding wages, and from public criticism/denouncement to administrative imprisonment, to ensure the Party’s desire takes precedence.

This is what the Party has done to Chinese Christians, Tibetan Buddhists, the Muslims in Xinjiang, and to Falun Gong, a spiritual practice when in 1999, the number of practitioners  reached an estimated 100 million (the U.S. State Department estimated 70 million [4]).

Chinese officials and scholars have frequently talked about “法治” (which really means “rule by law,” but often translates as “rule of law” as discussed earlier) and “人治” (usually translated as “the rule of man”). These two terms are close to “rule by law” and “rule by authority,” respectively. For the purpose of this analysis, “rule by law” refers to those instances in which the Party uses the law to measure what is legal or illegal and goes through a legal due process to enforce the decision. “Rule by authority” refers to those instances in which the Party Committee makes decisions on good versus bad, and uses any Party-controlled means to enforce the decision.

It is primarily Party committees that carry out “rule by authority.” The CCP has installed Party committees in each government office. The Party Secretary of the committee normally has substantially greater power and thus controls the committee. The “rule by authority” in many places also becomes “rule by man.”

Sometimes, however, when working on legal cases, there is a mixture of “rule by authority” and “rule by law.” For example, the Party chief of a court may give a judge an instruction on how to adjudicate a case. The judge goes through the legal process and announces the verdict in accordance with that instruction, regardless of how prosecutors and defendants present their arguments. The authority uses the judicial formality to carry out its ruling.

Throughout the CCP’s history, the Party has also employed other means to govern, including “rule by the gun” (during war time) and “rule by the emperor” (during the Cultural Revolution period, where the whole nation followed Mao Zedong’s spirit and his hand-picked Central Leading Group on the Cultural Revolution).

Overall, China’s current “rule by Party” is implemented using a mixture of “rule by authority” and “rule by law.” The Party uses the law only when it sees an advantage in doing so.

 

C. The Aims of Party Rule: “Rule over Thought” and “Rule over Action”

In Western philosophy, freedom of thought is a naturally-given right. In Western law, thought is protected unconditionally. Article 18 of the United Nations’ Universal Declaration of Human Rights states:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” [5]

Modern law in the West is designed to regulate human actions, but never thoughts.

However, under a regime that exercises control over ideology, “thought” is regulated. A “thought crime” is indeed a crime. Communist regimes used to use the term “anti-revolutionary” to declare people who have different opinions from the Party guilty and thus punish them.

Therefore, “rule over thought” is a category of control that the CCP implements in China. Only by taking this fundamental aim of the Party seriously can China’s intense environment of political repression be fully understood.

Because it is hard to use laws to regulate thoughts, thought control in China is done mainly through “rule by authority.” “Rule over action” can be done by the authority directly or by the Party-controlled law.

 

D. Summary of China’s Governing Structure

Putting all the terms together, China’s current governing structure can be described as:

A “rule by the Party” system, implemented by a mixture of “rule by law” and “rule by authority,” to rule over people’s thoughts and actions. The “rule of the Party” nature is non-negotiable. The degree of “rule by law” can, of course, be expanded or contracted in accordance with the Party’s current needs.

When Chinese officials or media talk about “rule” and “law” (“法治” or “依法治国”), no matter how it is translated into English, they normally don’t mean “rule of law,” but rather “rule by law.” Promoting “依法治国” is to promote a relatively higher degree of “rule by law,” meaning a greater use of the law in governing.

The different ways of translating “rule of law” and “rule by law” can create confusion among people when they discuss “rule” and “law” in China. Though some foreign observers try to find “rule of law” in China, CCP officials tend only to work towards achieving a higher degree of “rule by law.” The general public in China also wants “rule of law.” The state media thus claim, in response to foreign and local demands, that “China has already made good progress on ‘rule by law.’”

No matter how confusing the topic may appear, one thing is clear: In China, the most important thing to the CCP is to ensure its control of the country. Therefore, “rule by the Party” prevails in China.

 

II. History of “Rule by the Party” and “Rule by Law”

The CCP’s history provides good information on how “rule by the Party” and “rule by law” have played out in China under the Communist regime.

The work of “Rule by the Party” is primarily implemented by the Party organs, mainly the Party committees at different levels. The work of “rule by law” is, on the surface, handled by state agencies in the judicial system, but the Party has several ways to exercise control over the judicial system in order to affect the outcome of cases, or otherwise to prevent its “enemies” from receiving trials and other basic legal procedural opportunities.

One of the key instruments the Party uses to achieve these goals is the CCP Central Committee’s Political and Legal Affairs Committee (PLAC), (Chinese full name: 中共中央政法委员会, abbreviation: 中央政法委).

According to the CCP’s official website, “The Central PLAC is a functional department through which the CCP Central Committee leads and supervises the country’s political and legal work. At the macro level, it organizes the work of all central departments that are engaged in political and legal activities and supervises the work of the PLACs in provinces, autonomous regions, and directly administered municipalities. Its main responsibility is to unify the thoughts and actions of each political and legal affairs institution under the CCP Central Committee’s principles and policies …” [6]

Under this arrangement, the PLAC oversees the Public Security (police), the Procuratorate (prosecutor), the Court, the Justice offices (prisons, attorneys, etc.), and the State Security force. In addition, the Central PLAC also jointly works with the CCP’s Central Commission for Discipline Inspection (CCDI) to direct the government supervision offices, and jointly works with the Central Military Commission to direct the Armed Police.

Since the PLAC is the major Party instrument to ensure that the Party controls the execution of “rule by law,” its history correlates to the history of “rule by Party” and “rule by law.”

The origin of the PLAC was the “CCP Central Research Committee on Legal Issues,” which was founded in 1946. It was a think tank-like organization. From 1946 to 1949 the CCP fought against the Nationalist Party for the rule of China. The CCP implemented strong military control and mobilized resources, as many as it could, to win the war. Its governmental approach was more of a “rule by the gun.” Of course, it was still a form of “rule by the Party” since the CCP had an absolute control over the “gun.” There was, therefore, no strong need for a powerful legal committee to control the judicial system.

By the end of 1948, the CCP had won several major war campaigns and was clearly on the path to taking over the whole country. The “CCP Central Legal Committee” established on December 12, 1948, replaced the think tank-like legal committee. The new committee was tasked with creating laws for the “new” China that the CCP founded in October 1, 1949.

In the early 1950s, China was still in a semi-military control stage, or “rule by the gun,” as the CCP cleansed the Nationalist loyalists throughout the country and fought the Korean War against the U.S.

In that period, a state “Legal Committee” replaced the Party legal committee, which had been dissolved. The state “Legal Committee” was then dissolved in 1954 after the Constitution of the People’s Republic of China was adopted, as it was not consistent with the philosophy of judicial independence. [7]

It was a rare time in CCP history, as China was indeed moving towards “rule of law.”

However, that course quickly reversed itself. The public started to express the thought that the CCP should be subject to checks and balances. The CCP provided its decisive answer with the Anti-Rightist Movement, which lasted from 1957 to 1959. The campaign was a political movement to purge intellectuals (“rightists”) who criticized the CCP or who favored Capitalism.

This was the first time that the CCP faced a serious challenge to the legitimacy of its rule. Since there was no legal basis to go after these “thought-criminals,” the CCP used the Party organs to enforce its control. It brought the Party’s legal committee back to life. In 1958, it established the “CCP Central Political and Legal Affairs Leading Group.”

This legal leading group directly reported to Mao Zedong, then the CCP’s paramount leader.

To set up the framework for “Rule by the Party,” Mao drew a line between the Party and the state organs. All “policy design institutes” stayed in the Party; the state organs only had the right to make recommendations; and it was up to the Party Central Committee to make the final decisions. [8]

Following that design, this legal leading group oversaw public security, the procuratorate (prosecutorial system), and the court systems (公检法).

This structure ensured that the “rule by the Party” prevailed over the “rule of law.” That arrangement has continued through the present.

The Cultural Revolution (1966-1976) brought complete chaos to China. To attack his political rivals, Mao Zedong mobilized the general public to fight against those he considered “evil” or “counter-revolutionary,” ignoring all of the existing political and governing structures. Both the government system and the Party system remained paralyzed or were even overthrown. It became a “rule by the emperor,” period. The measure of whether a person was good or bad was based on his loyalty to Mao Zedong. Because Mao represented the Party and controlled the Party, “rule by the Party” transformed into “rule by the emperor.”

Like the Party and the state system, the Political and Legal Affairs Leading Group no longer had a function. Many officials working in the judicial system were overthrown, denounced, tortured, or otherwise removed.

In 1978, after the Cultural Revolution, the CCP Central Political and Legal Affairs Leading Group was re-established. The officials who were ousted were brought back into office. To prevent the tragedies they suffered from happening again, they wanted to have a higher level of democracy within the Party and a higher level of “rule by law” instead of “rule by the emperor” (a more formal mature legal process) in governing. It is still a “rule by the Party,” not “rule of law.”

That was the era when Deng Xiaoping initiated the Reform and Opening up policy in China. Steering China toward economic development and staying away from major political campaigns and ideology debate, Deng could afford to have a higher level of “rule by law.” However, Deng never gave up the Party’s control. He introduced the “Four Cardinal Principles” to ensure that no debate would ever occur on the principle of upholding the leadership of the CCP. “Rule by the Party” was firmly established in China.

Fairly speaking, the “rule by law” practice had made some big improvements at that time. For the first time, China established an attorney system.

Because of the Reform and Opening up policy, people were more open to the “rule of law” idea that Western countries have adopted. Some efforts were made to reduce the degree of “rule by the Party.”

On January 24, 1980, The CCP Central Committee published “The Notice to Establish the CCP Central Political and Legal Affairs Committee.” The notice defined the main function of the PLAC as to establish leadership over legislative work and control the political direction of the legal process, but not to interfere in the actual judicial work. [9]

In 1987, after the CCP’s Thirteenth National Congress, the CCP leadership decided to dissolve the PLAC which had flagrantly interfered with the independence of the judiciary bodies.

In 1988, the CCP Central Committee issued the “Notice on Establishing the CCP Central Political and Legal Affairs Leading Group.” The notice requested the dissolution of the PLAC and replaced it with a “leading group” (also called “small group” in Chinese). The new leading group would not host working conferences on legal work, nor would it issue directives. [10]

However, the June 4th event in China turned the tide back. When the CCP saw the public’s dissatisfaction with the government and the demand for democracy, it fell back on “rule by the gun” and strengthened the “rule by the Party.”

Early in 1990, the CCP Central Committee issued the “Notice on Maintaining Social Stability and Strengthening Political and Legal Work,” and “decided to resume the Central Political and Legislative Affairs Committee.” [11]

Since then, the PLAC’s power has continued to expand. In June 1995, the CCP Central Committee issued the “Notice on Forwarding the CCP Central Committee’s Notice on Strengthening the Political and Legislative Affairs Committee at all Levels of the Communist Party Committee” (General Office of the CPC [1995] No. 28) and explicitly required that the PLAC at all levels of the Party Committee would be a functional department that would lead political and legislative work for the CCP.” [12]

China’s opening up and economic growth pushed it to be more connected to the Western world. At the same time, the CCP couldn’t adopt “rule of law,” so it expanded its use of “rule by law.”

In September 1997, for the first time, the CCP’s Fifteenth National Congress report stated that “依法治国” (“rule by law”) was the basic strategy for governing the country. By the end of 1997, there were 8,441 law firms, 100,198 lawyers, 35,207 legal service offices, and 119,155 legal staff members in China.

In March 1999, the Constitution was amended to include “依法治国” (“rule by law”). [13]

In 1999, the practice of “rule by law” hit a wall when the CCP started suppressing Falun Gong.

Falun Gong is a spiritual practice. Its practitioners do physical exercises and follow the principles of “Truthfulness-Compassion-Forbearance.” There was no law in China that could be used to say Falun Gong was illegal or that Falun Gong practitioners were criminals. Besides, China’s Constitution specifies that each citizen has the right to freedom of religion.

The CCP lacked any legal basis to conduct its campaign against this spiritual belief. It stayed away from “rule by law” and switched to “rule by authority” to carry out its campaign against the millions of people who had taken up this practice.

The PLAC was the main Party organ to lead the effort against Falun Gong. It was given enormous powers. In 2002, its Party Secretary Luo Gan attained a seat on the CCP’s highest power structure, the CCP Central Committee’s Politburo Standing Committee.

Zhou Yongkang, the head of the PLAC and a Politburo Standing Committee member from 2007 to 2012, increased the PLAC’s power, building it into a huge empire of his own.

Needless to say, the “rule by authority” reached its peak during this period and the “rule by law” suffered a severe setback.

After Xi Jinping attained power in late 2012, he took Zhou down as a corrupt “tiger.” The PLAC head is no longer a Politburo Standing Committee member, thus making Zhou’s downfall a big blow to the PLAC organization.

Xi has subsequently continued to promote “rule by law.”

Ironically, however, Xi’s high-profile anti-corruption campaign has been carried out by the Party, outside the law. It is the CCP’s CCDI, rather than any state agency, that leads the campaign. The reason is easy to see: Since the majority of China’s officials have records of corruption, taking a “rule by law” approach, that is, using the law instead of the Party, might lead to a large number of charges and the possible downfall of the CCP. Xi needs to keep this campaign “under control.”

 

III. How “Rule by the Party” Is Implemented

As the CCP tries to rule over both people’s thoughts and actions, it employs many more ways in addition to the legal approaches to control people. All of them are under the Party’s control.

 

A. Party Committees Guide State Organs

An effective way for the CCP to control the state organs is for a Party committee to be established in each government office.

For example, each ministry has a ministry Party committee; each province has a provincial Party committee; each county has a county Party committee; and each court has a court Party committee. Even companies, organizations, schools, hospitals, and other entities all have Party committees (or Party branches which are of a smaller scale).

The Party Secretary of the Party committee holds more power than his counterpart in the government or organization. He is the “real” boss of the office.

Sometimes one person holds both the Party head position and the government head position. Sometimes two people hold these positions. In the latter case, the government head is normally a member, or maybe the Deputy Party Secretary of the Party committee. This arrangement gives the Party head a way to control the government head.

The Party committee carries out the Party’s will. Party directives are passed to each Party committee through the Party organizational structure. The government head, along with other government officials who are also Party committee members or just Party members, learn the Party’s directives from the Party committee and implement them through their government work.

The Party appoints all, including all government heads. The normal process to appoint a government head is to appoint him as a Party committee member first; he will work in that capacity while waiting for the people’s congress to confirm the government title at a later time. For example, Xi Jinping and Li Keqiang were first appointed in November 2012 as the CCP’s Politburo Standing Committee members. The National People’s Congress confirmed their government titles, President and Premier of China, respectively, in March 2013.

The Party has a disciplinary system. There are five disciplinary categories: Warning, Grave (Severe) Warning, Removal from Party Posts, Probation (with a one-year or two-year term), and Expelled from the Party.

Sometimes, Party members have an extra level of protection: they can receive a Party disciplinary reprimand and avoid a legal punishment. Theoretically, the Party’s discipline should only apply to a violation of the Party’s rules and legal punishment should apply to any violation of the law. However, because of the “rule by the Party,” sometimes the reprimands to officials violating the law come in the form of Party discipline.

For example, Shi Jun, Mentougou District Party Committee member and Deputy Executive of the District of Beijing received 87 gift cards in the total amount of 122,000 yuan (US$20,000). His punishment was a Grave Warning within the Party. There was no administrative or legal action taken against him. [14]

 

B. Thought Control

Thought control is a major activity of “rule by the Party.”

The Party has a political study program to “help” Party members stay in tune with the Party. Party members get together on a regular basis to study the Central Committee’s initiatives, directions, policies, and writings. The Communist Youth League also has the same program for its members.

As for the general public, the Party’s thought control is mainly done through the media.

The CCP’s Propaganda Department takes the lead on controlling the media. In China, there are state-level media, province-level media, and municipal-level media. All of them are under the leadership of the corresponding Propaganda Department at the same level.

The incident of the Southern Weekly’s 2013 New Year’s edition revealed to the world how the Propaganda Department controls the media. Southern Weekly is a weekly newspaper under Southern Media, which the Guangdong Provincial Propaganda Department controls. That control is direct – the deputy head of the Propaganda Department is also the Party Secretary of Southern Media.

Southern Weekly wanted to publish an editor’s commentary on the “Chinese Dream” (a term that Xi Jinping first promoted) in its 2013 New Year’s edition. The New Year editorial had the title   “中国梦,宪政梦” (“Dream of China, Dream of Constitutionalism”). However, its article didn’t pass Guangdong Provincial Propaganda Department’s review. It went back and forth for several rounds with significant changes. The head of the Propaganda Department even modified the article himself. Its call for cementing rights into a constitution was replaced with an editorial praising the CCP. The newsroom staff went on strike to protest against censorship, resulting in demonstrations, which revealed the Propaganda Department’s control to the world. The result? The Propaganda Department demoted Southern Weekly’s Chief Editor Mr. Hu Can. [15]

Sometimes the Propaganda Department directly issues orders to the media on what can be reported and what cannot. On July 29, 2011, after the high-speed train crash accident in Wenzhou, Zhejiang Province, the Central Propaganda Department issued a directive stating, “In regard to the major railroad accident on July 23, public opinion inside and outside China is becoming more and more complicated. All local media, including their affiliated newspapers, magazines, and websites must cool down on reporting this issue immediately. Stop new reports and any commentaries, except positive reports and information that the authorities provide.” [16]

Internet control is also a key area for the CCP. The Ministry of Public Security implemented the Golden Shield project, a firewall surrounding China and the world, to conduct censorship and surveillance of its citizens’ Internet usage. The project was initiated in 1998 and began operations in November 2003.

The Party also pays for “Internet commentators” to post comments on different Internet message boards, showing the Party’s policies in a favorable light in an attempt to shape and sway public opinion. At the beginning, these people were paid 50 cents for each post, so they got the nickname of “五毛党” (“50 Cent Party”).

Recently, the Party initiated an Internet control action requiring that all users must provide their real identification when using an Internet service, phone, mobile phone service, or website account. This constitutes a threat in that it asks Chinese citizens to be self-disciplined. They must think twice before posting anything on the Internet since Big Brother knows who they are.

From time to time, the Party may also conduct special political campaigns over the media. After banning Falun Gong, China Central Television (CCTV) used its “Focus” show, which, at that time, was the highest-rated program in prime time, to defame Falun Gong. From July 1999 to end of that year, “Focus” made 39 shows that denounced Falun Gong. By the end of 2005, it had created a total of 102 anti-Falun Gong shows. [17]

The Party’s control over the media is so “pervasive” and so “effective” – depending on how people describe it – that no independent media has been able to endure and almost no independent voice exists in China at all.

 

C. Control Using Extralegal Means

There are many extralegal means that the Party uses to conduct “rule by the Party.”

For people within the Party or its affiliated organizations, the Party can use its organizational structure and discipline to request them to conform to its requirements.

In any work unit, there is a corresponding Party committee that can use various administrative means and informal pressure to reward or punish those who follow or deviate from the Party’s will. These means include promotion (or demotion), work assignment, administrative rewards (or reprimands), or, in the case of “serious” infractions, termination. It can also leverage financial tools, including rewarding with bonuses, withholding salaries, and other means.

For example, in 1998, because Mr. Li Xingping practiced Falun Gong, the Qitaihe Municipal Education Bureau in Heilongjiang Province removed him from his position as the Principal of Lanfeng Elementary School. He was assigned as a teacher at an elementary school in a rural village and later re-assigned to another village elementary school farther away. It was not until 2008 that he was transferred back to his original school. By this time, his job was not teaching, but boiling hot water in the boiler room. Moreover, the Education Bureau withheld his salary which amounted to a total of 260,000 yuan (US$42,000), from 1999 to 2014. [18]

The Party can organize public campaigns in work units or in society. These campaigns can target not only adults, but also children. In 2004, the Dandong Municipal Education Bureau, Heilongjiang Province, initiated an anti-Falun Gong campaign for all elementary school students. Fuchun Elementary School took it a step further. It stopped normal classes and forced every student to “pass the test” by “reporting on others” (report any other students, teachers, or parents who may have any relationship with a Falun Gong practitioner). [19]

The Party’s control is not just at work or at school. It is everywhere. The “户口” (residence identification) system ties each person to one city (for farmers it is a village). The “街道办事处” (street management office) and the “居民委员会” (residents’ committee) manage city dwellers. The “村民委员会” (villagers’ committee) manages farmers.

Within the Public Security (police) system, there is a police classification called “片警” (community policeman), whose responsibility is to maintain the social and security order of the community assigned to him. These policemen deal not only with criminal or civic issues in their community, but can also “provide care” on everything to everyone in their community.

The Re-education through labor (RTL) system is the most severe administrative punishment that people receive without going through a legal process. It puts people who have committed minor crimes (not severe enough for criminal charges), such as thieves, prostitutes, and religious or political dissidents, including unregistered Christians or Falun Gong practitioners, into administrative detention. The detention terms typically range from one to three years, with the possibility of an additional one-year extension.

It is the Public Security Bureau, not the court, that sentences people to RTL. Therefore, individuals are rarely charged or tried. The Western world has been highly critical of RTL for violating due process. On November 15, 2013, China announced its plan to abolish RTL. Amnesty International, however, said that other forms of arbitrary detention have replaced RTL. Instead, the Party uses criminal prosecution, brainwashing centers, mental institutions, “black jails, and enforced disappearances.” [20]

 

D. Control of the Judicial System

State agencies in the legislative and judicial system are the institutions that implement “rule by law,” or even “rule of law.” However, the Party committee at each agency has an extremely high degree of authority, and can alter the outcomes of cases, the treatment of suspects or litigants, and the decisions of judges. This ensures that the Party controls legislation, the police, the prosecutor, the court, and all other judicial functions. In other words, “rule by the Party” supersedes “rule of law.” The application of law is only a Party controlled “rule by law.”

For the Party, having the Party committees is not enough. The CCP also has the PLAC supervise all state agencies in the judicial system.

The Central PLAC has five member agencies: the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice. The head of each agency is a member of the Central PLAC committee. This committee also includes the Commander of the Armed Police and the Deputy Director of the General Political Department of the People’s Liberation Army (PLA) (who also serves as the Party Secretary of the Central Military Commission’s Discipline Committee).

Normally the head of the Ministry of Public Security serves as the Deputy Secretary of the Central PLAC.

The following chart shows the relationship between the Central PLAC and its member state agencies.

a20150120a_chinaruleoflaw_part_1_central_plac

Figure 1: The Central PLAC Structure

The CCP’s document “Decision on Further Strengthening the Establishment of the Team of Political and Legislative Cadres” in 1999 (CPC [1999] No. 6 Document) claimed that “the PLAC is a functional department through which all levels of party committees lead and supervise the political and legislative work.”

The PLAC definition states, “Each member of the PLAC studies and formulates collectively the PLAC’s direction, decisions, regulations, and requirements, and implements them into the work of its own department.” [21] This ensures the PLAC controls its member agencies.

The same PLAC structure is implemented at the provincial, municipal, and county levels.

A side-effect of the Central PLAC structure is that the Minister of the Ministry of Public Security takes the Deputy Secretary seat at the PLAC, while the President of the Supreme People’s Procuratorate and the President of the Supreme People’s Court are only members. This creates a reporting line from the Presidents of the Procuratorate and the Court to the Public Security Minister. It implicitly gives the police command power over the prosecutors and the judges, thus precluding the possibility of any judicial independence.

The same structure also exists at the local level. Quite often, the local Public Security head also takes the local PLAC head position. This gives the police more power over the prosecutors and judges.

In opposition to the Western concept of separating the work of the police, the prosecutor, and the court, the PLAC has the concept of “jointly handling the cases.” It pulls the public security office, the procuratorate, and the court together to process cases “efficiently.” More importantly, it ensures the “complete” implementation of the Party’s will throughout all judicial institutions.

The consequence of such a practice is that the public security bureau collects the evidence according to the procuratorate’s prosecution needs; the procuratorate then prosecutes according to the need for a court judgment. For major cases, the PLAC makes decisions before the court trial even begins; the judge simply goes through the hearing as a formality and announces the PLAC’s verdict at the end.

This is what resulted in China having the amazing 99.9 percent conviction rate in 2013. Only 825 of the 1.16 million people who faced trial in 2013 were found not guilty. [22]

Ironically, Article 126 of China’s Constitution states, “The people’s courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference from any administrative organ, public organization, or individual.” [23]

In his article on the PLAC’s damage to “rule by law,” Chinese human rights activist Lv Gengsong gave an example. The Qianjiang New Town housing development project was a main urban development initiative in Hangzhou, Zhejiang Province. The project team sued villagers to take over their land. They were confident that they would win the case, but they had a small concern. The villagers said that they would appeal if they lost.

Thus, in order “to ensure that there was no surprise from the appeal court,” on April 29, 2003, Wang Guangrong, the project manager, wrote a report to Yu Huida, the Party Secretary of the Hangzhou PLAC, “asking for the full support of the Municipal Intermediate Court.”

Yu wrote his instruction on the report: “Please ask Jixin (President of the Hangzhou Intermediate Court) to review. [The Intermediate] Court should fully support the city’s key projects. Signed by Yu Dahui on April 30.” Thus, the project team sealed the case and a possible appeal even before the court hearing started. [24]

The Central Committee for Comprehensive Management of Public Security (中央社会治安综合治理委员会) is another powerful Party organization to implement “rule by the Party.” It was established in 1991 with the goal of maintaining social stability.

This committee is under the Central PLAC. The Party Secretary of the Central PLAC also holds the Director position of this committee. The Central PLAC and this committee collocate in the same office to conduct business – a way to ensure resource sharing and consistent policy implementation.

Forty state agencies are members of this committee, including the Ministry of Public Security, the Ministry of Commerce, the Ministry of Culture, the Ministry of Health, the Ministry of Transportation, People’s Bank of China, the Civil Aviation Administration, and the Armed Police.

In 2011, Zhou Yongkang, then Party Secretary of the PLAC and then-Director of this committee, renamed it, calling it the “Central Committee for Comprehensive Management of Social Control.” The name change expanded the role of this committee and marked the peak of this organization. Eleven new state agency members were added. Seven Deputy Directors of this committee held the deputy-national-level rank, including a Vice Premier, the head of the CCP Central Propaganda Department, the Secretary-General of the State Council, and the Minister of the Public Security. [25]

Through this committee, the Party not only controls the judicial system, but many other state functions.

After Xi took down Zhou Yongkang, the original name was reinstated for this committee and its power was reduced.

 

V. Conclusion

No matter how state media and government officials have talked about “rule of law,” the governing principle in China is “rule of the Party” and what they mean, most of the time, if not always, is the Party controlled “rule by law.” It is possible for China to have a higher degree of use of the law in its rule, but it will always stay within the confines of “rule by the Party.”

Xi Jinping’s talk of “rule by law” or “rule of law” – as the Chinese can be interpreted either way – may have a number of possible meanings:

One, it may only be lip service, with the real goal being to consolidate the power of the PLAC. Reducing the power of or even removing the PLAC would not change the nature of “rule by the Party.”

Two, Xi may want to have a higher degree of “rule by Law.” If so, it may mean an increase in the usage of law (using the legal process more while allowing the authorities less leeway in dictating rulings). It would be a minor improvement, but still wouldn’t change the nature of “rule by the Party.”

Improving the degree of “rule by law” will face a dilemma as to how to deal with religions. As China’s Constitution protects the freedom of religion, the CCP has been relying on the “rule by authority” approach to conduct its religious suppression. Xi will have to make a tough decision on whether to ease the Party’s religious persecution or create a legal process to ban religions.

Three, Xi may have an even greater ambition: end the era of one-party rule and take China into a true “rule of law” era. However, there is no strong indication so far to this effect.

There is one other factor that people should consider: Different government factions may disagree on Xi’s use of “rule by law” or “rule of law.” For example, just as Xinhua reported that Xi Jinping pledged, “We are going to punish, with an iron hand, any violators who destroy ecology or environment, with no exceptions,” the Party removed the environmental film, Under the Dome, considered to be China’s Silent Spring, from Chinese websites. Even though 100 million people had viewed the film; even though environment minister Chen Jining had praised it, Under the Dome has disappeared. [26]

This incident suggests two further insights. First, “Rule by the Party” is alive and well in Communist China. Second, in importance, the Party’s ascendance prevails above all else. The power of the message that Under the Dome delivers matters little before the Party’s choice. To the extent that Xi espouses this same goal, we can see that it has to be the Party that does the thinking for China. Only the Party can choose what is “right” for China’s future.

This comes back to the fundamental issue: Only the Party has the power to review compliance with the law. Thus the Party itself remains the great obstacle to the rule of law in China. No official has dared to call for this change. Anyone who did would inevitably become the Party’s enemy.

 

Endnotes:

[1] The Wall Street Journal, “Rule of law or rule by law? In China, a preposition makes all the difference,” October 20, 2014.
http://blogs.wsj.com/chinarealtime/2014/10/20/rule-of-law-or-rule-by-law-in-china-a-preposition-makes-all-the-difference/.
[2] People’s Daily, “Uphold The Four Cardinal Principles,” Deng Xiaoping’s Speech at a forum on the principles for the Party’s theoretical work, March 30, 1979.
http://en.people.cn/dengxp/vol2/text/b1290.html.
[3] China’s Government website, Constitution of People’s Republic of China.
http://www.gov.cn/gongbao/content/2004/content_62714.htm.
[4] U.S. State Department website, “International Religious Freedom Report for 2013.”
http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?year=2013&dlid=222123#wrapper.
[5] United Nations’ website, “The Universal Declaration of Human Rights.”
http://www.un.org/en/documents/udhr/#atop.
[6] CCP website, “Brief Introduction of the CCP Central Political and Legal Affairs Committee.”
http://cpc.people.com.cn/GB/64114/64135/5994757.html.
[7] Financial Times, “The History and Evolvement of China’s Political and Legal Affairs Committee,” October 23, 2014.
http://www.ftchinese.com/story/001058773?full=y.
[8] ibid.
[9] ibid.
[10] ibid.
[11] ibid.
[12] ibid.
[13] ibid.
[14] Xinhua, “Deputy Executive of Mentougou District Received Party’s Grave Warning for Receiving 120,000 Yuan Gift Cards,” January 1, 2015.
http://www.bj.xinhuanet.com/bjyw/2015-01/01/c_1113847783.htm.
[15] Diplomat, “Media Outlets Protest State Editorial on Southern Weekly,” January 8, 2013.                                                                                             http://thediplomat.com/2013/01/media-outlets-protest-state-editorial-on-southern-weekly/.
[16] Deutsche Welle, “A Shanghai Newspaper’s Deputy Editor Was Fired for Reporting High-Speed Train Crash Accident,” August 5, 2011.
http://www.dw.de/上海一副总编因动车事故报道被免职/a-15298234.
[17] WOIPFG, “An Investigative Report on the Director of the Central 610 Office Li Dongsheng.”
http://www.upholdjustice.org/node/243.
[18] Minghui, “Teenage Boy Travels Alone to See Father in Prison, Turned Away by Guards,” March 10, 2015.
http://en.minghui.org/html/articles/2015/3/10/149267.html.
[19] Minghui, “Dandong City ‘610 Office’ Forces Elementary Students To Report Dafa Practitioners,” May 26, 2004.
http://www.clearwisdom.net/emh/articles/2004/5/26/48580.html.
[20] University of Denver, “The Continuation of Slavery in the Modern World: The People’s Republic of China and Forced Labor Practices.”
http://www.du.edu/korbel/hrhw/researchdigest/china/SlaveryChina.pdf.
[21] CCP website, “Brief Introduction of the CCP Central Political and Legal Affairs Committee.”
http://cpc.people.com.cn/GB/64114/64135/5994757.html.
[22] New York Times, “China’s Broken Justice System,” March 17, 2015.

[23] China’s Government website, Constitution of People’s Republic of China.
http://www.gov.cn/gongbao/content/2004/content_62714.htm.
[24] Peacehall.com, “Lv Gengsong: China’s Largest Spy Organization – Political and Legal Affairs Committee.”
http://www.peacehall.com/news/gb/pubvp/2007/07/200707020226.shtml.
[25] Epoch Times, “Zhou Yongkang Once Had Nine Deputies at the Deputy-National-Level Rank Before He Was Taken Down,” October 22, 2014.
http://www.epochtimes.com/gb/14/10/22/n4277960.htm.
[26] Bloomberg, “China Pollution Film Vanishes as Xi Pledges to Fight Smog,” March 7, 2015.
http://www.bloomberg.com/news/articles/2015-03-07/china-pollution-film-vanishes-as-xi-makes-pledge-on-environment.

 

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