China's New National Constitution Day: Is It Worth Celebrating?
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ChinaBrief Special Issue s Volume XIV s Issue 22 s November 20, 2014 SPECIAL ISSUE ON CHINA’S FOURTH PLENUM s VOLUME XIV s ISSUE 22 s NOVEMBER 20, 2014 In This Special Issue: IN A FORTNIGHT By Nathan Beauchamp-Mustafaga 1 CHINA’S NEW NATIONAL CONSTITUTION DAY: IS IT WORTH CELEBRATING? By Jerome A. Cohen 3 Chinese President Xi Jinping AFTER THE FOURTH PLENUM: WHAT DIRECTION FOR LAW IN CHINA? and his fellow Politburo By Carl Minzner 7 Standing Committee members at the Chinese Communist FOURTH PLENUM: IMPLICATIONS FOR CHINA’S APPROACH TO Party’s Fourth Plenum. INTERNATIONAL LAW AND POLITICS (Credit: Xinhua) By Timothy Heath 10 China Brief is a bi-weekly jour- XI CONSOLIDATES POWER AT FOURTH PLENUM, BUT SEES LIMITS nal of information and analysis covering Greater China in Eur- By Willy Lam 13 asia. THE FOURTH PLENUM, PARTY OFFICIALS AND LOCAL COURTS By Jerome Doyon and Hugo Winckler 17 China Brief is a publication of The Jamestown Foundation, a private non-profit organization based in Washington D.C. and is edited by Nathan Beauchamp- In a Fortnight Mustafaga. SPECIAL ISSUE ON CHINA’S FOURTH PLENUM The opinions expressed in China Brief are solely those of the authors, and do not By Nathan Beauchamp-Mustafaga necessarily reflect the views of The Jamestown Foundation. As Editor, I have the distinct pleasure of introducing a special issue of China Brief, focused on the Chinese Communist Party’s Fourth Plenum and its theme of yifazhiguo (依法治国), often translated as the “rule of law,” though, as one contributor notes, the term is better translated as “rule according to law.” China Brief has brought together leading experts on the Chinese legal system and foreign policy to contribute their analysis on the implications of the 18th Central Committee’s annual meeting in Beijing on October 20–23. For comments and questions about China Brief, please con- verall, the analysts find limited promise in the announced reforms, and many tact us at Oreasons to be skeptical about the long-term trajectory of the Party’s relationship < beauchamp@jamestown. to the law. The Fourth Plenum’s Decision document distanced the Party from org > earlier reform efforts in the 1990s and 2000s for constitutional issues and judicial 1111 16th St. NW, Suite 320 independence. While few details are currently available for the major initiatives, Washington, DC 20036 Chinese President Xi Jinping’s emphasis on the “great rejuvenation of the Chinese Tel: 202.483.8888 nation” and cultural self-confidence has now extended into the Chinese legal field, Fax: 202.483.8337 TO SUBSCRIBE TO CHINA BRIEF, VISIT http://www.jamestown.org/chinabrief/ 1 ChinaBrief Special Issue sVolume XIV s Issue 22 s November 20, 2014 as the Plenum’s Decision and comments by senior leaders models” are no longer acceptable in China. explicitly indicate that further inspiration for China’s legal reforms will come from within China, not from the Willy Lam, a Jamestown Foundation Senior Fellow, West or other Asian nations. This exclusionary outlook explores the elite politics behind-the-scenes of the by the Party will likely extend into the international Plenum. Lam suggests President Xi has signaled his arena, as China moves to generate support for its rise own unrivaled power in the Decision, since Xi was to great power status through favorable changes to the the lead author and included himself in the traditional international legal system. Party theoretical lineup of Mao Zedong and Deng Xiaoping, something neither Jiang Zemin nor Hu Jintao In this special issue, Jerome A. Cohen examines the Plenum accomplished while still in office. This expanded power through the lens of its declared “National Constitution also carried over to Xi’s anti-corruption office, as the Day” on December 4. Reflecting the troubled history of Central Commission for Disciplinary Inspection gained legal reform in China, this new observance is actually the greater sway over the military’s own graft investigations. third legal-focused celebration set on this date, following Yet, Xi’s clout appears to be limited to policy, as the two abandoned pronouncements dating back to 1982 Chinese president experienced several apparent failures in and 2001. Cohen argues the Decision represents meager planned personnel moves. Xi was unable to promote his progress in empowering the Standing Committee of favored military confidants, Zhang Youxia or Liu Yuan. the National People’s Congress (NPCSC) to fulfill its More importantly, the lack of a public announcement of responsibility to enforce the Chinese Constitution, and former Politburo Standing Committee (PBSC) member the Decision’s use of “constitution” (xianfa) instead Zhou Yongkang’s fate—undoubtedly sealed, but still in of “constitutionalism” (xianzheng) reflects President need of an official verdict—may signify opposition by Xi’s continued suppression of the latter term and the Party elders. Yet, this opposition is likely more concerned dim prospects for the Party submitting itself to the with the prosecution of a former PBSC member— constitution in the future. Yet, Cohen finds hope for once immune from corruption charges—than an actual future legal reforms both in the very theme of yifazhiguo attempt to protect Zhou from his inevitable downfall. for the Plenum and the attention paid to the issue by the Chinese government, media and, perhaps most Broadening the scope of analysis, Timothy Heath importantly, the Chinese public. discusses the Plenum’s implications for the Chinese government’s foreign policy. Heath follows the history of Taking a comprehensive view of the Plenum and its previous fourth plenums and finds they often foreshadow Decision document, Carl Minzner highlights the three core major changes in China’s behavior in the international takeaways: modest technical legal reforms, strengthened community. Heath argues that the Party’s attempt to Party control and indigenous sources for future reforms. consolidate control over the domestic legal system will Understanding the importance of terminology for likely have repercussions for Beijing’s use of international the Party, Minzner makes a clear distinction between law in its foreign policy moving forward. Chinese leaders’ the “rule of law” as the Party translates yifazhiguo and talk of “upholding the rule of law” abroad is contingent a more accurate translation of “rule according to law.” on the rule of law favoring China, meaning Beijing will Similar to Cohen’s discussion of the NPCSC’s lack of pick and choose the international legal tools that serve independence from the Party, Minzner contends the its interests—leveraging its veto in the United Nations Decision institutionalizes Party control over legislation, Security Council but ignoring the Philippines’ arbitration which will not only make the role of the NPC, China’s of their disputed maritime border in the South China Sea “rubber-stamp” legislature, even more perfunctory, through the International Tribunal on the Law of the Sea but also reduce the space for legal advocates to push (ITLOS). This increased emphasis on international law as for greater reforms, since the Party’s implicit power to not only a rhetorical device to criticize the United States review legislation is now explicit. Furthermore, President but also as a tool to support China’s continued rise in Asia Xi’s efforts to refocus the Chinese state on China’s own nevertheless provides an opportunity for Washington to history suggests the Chinese legal field may become more encourage Beijing’s continued adherence to international isolated from the international community, as “foreign norms. 2 ChinaBrief Special Issue s Volume XIV s Issue 22 s November 20, 2014 Refocusing on the grassroots level, Jerome Doyon and to enhance the Party’s mobilization of the Constitution as Hugo Winckler consider the impact of the Decision an instrument for consolidating its dictatorial power over on local courts and their judicial independence from an increasingly restless and complex society? Or should it local officials. Doyon and Winckler contend that the be seen as a prominent symbol of significant, if limited, announced policies do provide some semblance of progress in the growth of “constitutionalism,” the judicial independence, but at the cost of increased process of curbing arbitrary political power by subjecting control by central authorities in Beijing. In one of the rulers as well as the ruled to government under law? Decision’s few explicit restrictions on Party power, local governments are now required to document cadres’ For years, some law-reforming Chinese scholars urged interference in legal proceedings and, in turn, cadres will China’s leaders to establish National Constitution Day as be evaluated on their respect for the “rule of law” for a symbol of a hoped-for comprehensive effort to raise promotions—but provides no further details, suggesting popular rights consciousness and thereby provide greater officials may end up policing themselves. public support for transforming the Constitution from an ineffectual listing of attractive goals to a vibrant and *** enforceable guarantor of human rights. Indeed, this is actually the Party’s third attempt to exploit December 4. China’s New National Constitution When the current Constitution was first promulgated in 1982, the Party labeled this date “Implement Constitution Day: Is It Worth Celebrating? Day.” In 2001, during another law reform era, the date was rebranded “Legal System Propaganda Day” (People’s By Jerome A. Cohen Daily, December 5, 2001). Neither attempt