Rule of Law / 法治

Brief: The principle of the rule of law means that laws provide meaningful restraints on state power. The United Nations defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” In a rule of law system, every person is subject to the law and no one is above it. In liberal democracies, the rule of law is associated with civil and political rights and implies a separation of powers. The Chinese Communist Party’s conception of the rule of law – fazhi (法治) or yifa zhiguo (依法治国), which literally means “law-based governance” or ruling the country in accordance with the law – has very little in common with the liberal democratic concept. In China’s “socialist rule of law system with Chinese characteristics” the legal system is under the Party’s leadership and supervision. The CCP ultimately sees the law as a tool to ensure stability and order, as well as being a means to justify and maintain Party rule. Arguably, fazhi is so different from the international principle of rule of law that it should perhaps not be translated as “rule of law”.   Analysis: The rule of law has been a recurring theme in China’s reform plans and official discourse ever since the early 1980s. The reconstruction of the legal system and the professionalization of the judiciary were important aspects of China’s modernization reforms in the aftermath of the political campaigns of Mao Zedong, which culminated in the Cultural Revolution. After Mao’s death, measures were put in place to prevent the over-concentration of power and to delegate authority from the Communist Party to government agencies. Key words like class struggle, contradictions and revolution were replaced with stability, harmony, and the rule of law. Legal institutions were created, entire new areas of legislation drafted, law schools established. As the country opened itself up to foreign investment and international cooperation, there was an assumption in the West that China would also be socialised into accepting international norms and that it was evolving from ‘rule by man’ under Mao Zedong to the rule of law in a liberal democratic sense. Xi Jinping has stressed the importance of the rule of law since he rose to power in 2012 and pledged to catch both “tigers and flies” in a far-reaching anti-corruption campaign. The Fourth Plenum of the 18th Congress of the CCP in 2014 had the rule of law as its overall theme, which it declared would provide “a powerful guarantee for achieving the Two Centenary Goals and realizing the Chinese Dream of the great rejuvenation of the Chinese nation”. However, if the first thirty years of legal reform and opening up saw the de-politicization of the Chinese justice system, the last decade has seen its re-politicization or partyfication. Party organs have absorbed their government counterparts, and the law has been used to codify the Party’s leadership. In 2018, a constitutional amendment removed the term limits for the presidency introduced in 1982. A series of vague but sweeping security laws and regulations have been enacted, including most recently in Hong Kong. Illustrative of China’s instrumental use of law and selective compliance with international law, in June 2020 Beijing passed a “Law on Safeguarding National Security in the Hong Kong Special Administrative Region”, bypassing Hong Kong’s local legislature and the “One Country Two Systems’” principle of the Sino-British Joint Declaration. In November 2020, the CCP held a conference declaring the establishment of “Xi Jinping Thought on the Rule of Law and its status as the guiding thought for law-based governance in China”. Stressing the importance of upholding the leadership of the CCP in order to build China into a socialist country under the rule of law by the year 2035, the whole country was instructed to seriously study and understand Xi Jinping’s Thought on the Rule of Law (习近平法治思想) as “one of the pivotal pillars of the ideological complex that supports the country in the years to come”.   Malin Oud