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Fourth Plenum Has Opened Up Discourse on Constitutionalism, Governance

Cheng Li

A distinguished American writer, Sydney J. Harris, once said: “When I hear somebody sigh, ‘Life is hard,’ I am always tempted to ask, ‘Compared to what?’” Perhaps the same can be said about the Chinese Communist Party’s ongoing anti-corruption campaign. Party chief Xi Jinping has repeatedly said that rampant official corruption poses a life-and-death threat to the CCP and the nation.

With the support of his principal political ally, anti-corruption czar Wang Qishan, Xi has launched a remarkably tough national anti-corruption campaign. In 2013, for example, the Central Commission for Discipline Inspection led by Wang handled 172,000 corruption cases and investigated 182,000 officials, the highest annual number of cases in 30 years. By October 2014, the Xi leadership had purged a total of 55 ministerial and provincial level leaders on corruption charges, including seven members of the newly-formed 18th Central Committee of the CCP and one member of the CCDI.

In an even bolder move, Xi recently purged two heavyweight leaders: former Politburo Standing Committee member Zhou Yongkang, who controlled China’s security and law enforcement apparatus for 10 years, and former Vice Chairman of the Central Military Commission Xu Caihou, who was in charge of military personnel affairs for a decade. These moves greatly bolstered public confidence and support for Xi, contributing to his image as a strong, decisive leader. Though this relentless anti-corruption campaign has already caused changes in official behavior, it risks alienating both officialdom — the very people on whom the system relies for effective functioning — and vested interest groups in monopoly-controlled business sectors. These main industries targeted by the campaign, including oil, utilities, telecommunication and banking, are also the pillar industries of state power.

Though his campaign has reduced official wrongdoing in the short term, the biggest risk for Xi is that his ad hoc anti-corruption effort may become a substitute for systematic legal and political reforms critical to bringing about a fundamental shift toward good governance in China. Because of the improvised character of his anti-corruption drive, various forces in the country — especially political rivals — will view Xi’s anti-corruption campaign as primarily driven by factional politics and the need to consolidate power.

Xi and his team are apparently aware of these challenges. Wang said explicitly that while the ongoing anti-corruption campaign deals mainly with “symptoms, not the root-cause,” it can help “gain the necessary time to find a way to cure the disease in the future.” In a very timely move, the Xi leadership devoted the Fourth Plenum of the 18th Central Committee, held in late October, to the subject of rule of law and legal reforms. For the first time in CCP history, a central committee plenum focused on the country’s legal development.

Nonetheless, critics in China and abroad were disappointed with the resolution of the meeting because it did not stress the supremacy of the constitution over the CCP. Instead, it reaffirmed the party’s leadership of constitutional reforms, implying that the party will remain above the constitution. Before the plenum, a quote attributed to Xi Zhongxun, Xi Jinping’s father, circulated widely in Chinese social media. The story was that in the early 1990s the elder Xi, then vice chairman of the National People’s Congress, said that China would always be at risk of disaster if the leadership did not figure out where the supreme power of the country should lie: the party or the constitution. Two decades later, this fundamental constitutional issue, as well as the risk of disaster, remains unchanged.

Despite the failure of the recent plenum to point to philosophical and ideological change in the CCP’s governance of China, it outlines some important legal reforms. In particular, its establishment of circuit courts, which will operate across administrative regions, will bolster judicial independence. This change, along with development of a mechanism to keep records of officials who interfere in judicial cases, will ostensibly limit the party’s influence in legal affairs. The plenum also highlights the imperative for professional training of lawmakers, judges and prosecutors and initiates a liability accounting system to hold officials accountable for poor decisions.

Critics’ disappointment and the hesitation of CCP leadership aside, the Fourth Plenum has reopened much-needed public discourse on constitutionalism and governance in China. One can expect various forces in the country — from liberal intellectuals, human rights lawyers, and independently-minded legal professionals to Maoists, conservative party apparatchiks, and vested interest groups — in the coming years to contend on the legal front.

The next few years will be a test not only to see whether China’s century-long movement for constitutionalism can find a more effective way to enlighten the nation at this critical time in history, but also a test for Xi. Will Xi make a lasting contribution by doing as he said he would, and “placing power in the cage of law”? If he does not, his fear — and the fear of his father — will not be calmed.

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