01 Jun ARTICLE | Yu Keping, Xi Jinping and the Rule of Law
By Susan Trevaskes
This is a follow-up paper for the 2016 SDN Encounter with Yu Keping.
What do the following three disparate governance agendas have in common: building frameworks for fighting corruption; enhancing judicial integrity; and fighting criminals and dissenters who threaten social stability? The answer is that they are all part of the Chinese President Xi Jinping’s ‘Ruling the Nation in Accordance with the Law’ (yifa zhiguo) or ‘Rule of Law’ (ROL) platform. ROL has become the defining agenda and overarching platform of President Xi Jinping’s leadership.
Well before Xi Jinping came on the scene, Yu Keping had long argued that rule of law is one of the defining planks of good governance. Xi Jinping would agree; I think we would all agree. But what each person understands by rule of law is variable. According to an article Yu Keping wrote for the Huffington Post, there are seven key elements of good governance which he says are reliant on the rule of law. These elements are: fairness participation, responsibility, accountability, transparency, clean government and stability. We can find traces of all these elements in Party Resolutions as well as in Supreme People’s Court (SPC) Opinions and Decisions that have been issued from Beijing during the past three years.
When the new Xi Jinping leadership group came into power in late 2012, they were well aware that they had to win back the hearts and minds of people whose trust in the law had been seriously eroded by political and judicial corruption (Fu 2016), and who had become more inclined to seek justice through collective protests and petitions, rather than through the legal system. Hence ROL became a pivotal ingredient in Xi’s political vocabulary.
As Minzner, Fu and Brødsgaard and Grünberg have all pointed out, various provisions in the Party Resolution of 2014, and in other reform documents published in 2013 and 2014, including the new SPC five-year plan for court reform issued on 9 July 2014, indicate that the SPC has made a priority of reconfiguring central-local judicial decision-making, to enable the centre to exercise greater control over local courts. These documents list important justice reforms, such as shifting responsibility for resourcing courts from the local to the provincial level. This move makes it much harder for local political authorities to threaten local judges and courts with withdrawing revenue in order to obtain favourable outcomes in administrative and civil disputes with local residents. The SPC intends to limit judicial discretion and inconsistency, especially in administrative or civil disputes that touch on social stability concerns. At the same time, the SPC aims to enhance transparency, including by posting judgments on court websites.
Xi Jinping’s ROL is not a ready-made ideology. It has rather been evolving into an ideological platform over the last three years. It began in 2013 with a call by Xi Jinping to re-build credibility (gongxinli) into the justice system. It moved to include the importance of the integrity of upholding the law in an all-out war on corruption. It developed further in 2014 to incorporate a war on terror (“in accordance with the law”) and (in 2015) a campaign against lawyers in 2015, again “in accordance with the law”. The evolution suggests that Xi’s take on ROL was not a ready-made ideological platform implemented when he came on board as President in late 2012. It is certainly built on many tenets of the 1980s socialist rule of law doctrine of Deng Xiaoping. But it has extended these tenets to embrace an increasingly wider array of national issues and, as I argue below, it has now morphed into an ideology not about law per se, but about Party rule through law.
Crucially, the glue used by Xi Jinping to bind together the various elements of his ROL agenda is Party leadership. In his keynote address at the National Conference on Politico-legal Work (8th January 2014), Xi Jinping, who now heads the new National Security Commission and Central Leading Group for Internet Security, among other posts, declared that China’s politico-legal organs need more than ever before to play a pivotal role in bringing about sustainable economic growth and social stability. Over the coming years, he said, politico-legal organs will be required to act as the ‘dagger handle’ of the Party (党的刀把子).
The Xi Jinping leadership is thus seeking to build its legitimacy and to improve its legal system not by distancing the Party from the affairs of the justice system, but by doing exactly the opposite. The trend is clearly evident in the resolutions issued after the Third and Fourth Plenum of the Eighteenth Party Congresses in November 2013 and October 2014. The 2014 Resolution in particular focuses on ROL and the re-invigoration of the authority of the central Party in Beijing. The point is that the Xi Jinping leadership is rearranging Party-state power relations so that the Central Party in Beijing can enhance its oversight of legal and governmental institutions in such a way that they operate within a tight ROL framework. The Resolution of the Party’s Fourth Plenum on 28 October 2014, states that the Party’s supremacy and socialist rule of law are ‘identical’ (yizhe). The document insists that the Party will now ‘implement its leadership role through the rule of law.’
Here we see that ROL has an important ideological role to play. It enables disparate agendas to be pursued, from fighting corruption and guarding against the erosion of institutional credibility, to fighting criminals and dissenters who threaten social stability, to guarding against national and international security threats. All are seen to have a common, singular purpose. ROL is understood in classic instrumentalist terms: it is seen as an instrument that encourages clean government at the local level. At the same time, ROL is a political instrument that is used to contain and punish enemies of the Party (and enemies of Xi Jinping in particular).
The Xi leadership is thus attempting to implement all seven elements of governance reform that Yu Keping lists, but it is doing so through Party rule over the law, not the rule of the law per se. It is Yu Keping’s last-mentioned element – stability – that is central for understanding what is now going on in China, and how Xi Jinping’s ideological platform is developing. His ROL platform is essentially about using the law as a tool of what Xi would regard as good Party governance.
While some of Yu Keping’s elements of good governance, such as transparency and accountability, play a part in Xi Jinping’s overall agenda, Yu Keping’s seventh element, stability, is assumed by Xi Jinping to be the indispensable prerequisite of the other elements. Xi Jinping and his colleagues believe that good governance requires a certain level of social stability in order for the other elements of governance to work effectively. The logic is clear: if society is unstable, then elements such as accountability and transparency of government cannot flourish.
Xi’s ROL platform is therefore based on a strategy to protect the Party and the state from the social fallout of the slowing economy. Two main strategic threats to China’s development are emerging, according to this logic. The ROL platform is seen as a way of organising policy and judicial and security organs to focus on two main groups of threats to the nation. Corruption and the erosion of institutional credibility is the first such perceived threat; the other threat is criminals and dissenters who threaten stability and national security threats including terrorism in Xinjiang. The Party leadership is addressing the first threat by intensifying the role of law in standardising judicial decision-making across the nation: that is, intensifying Party rule over local justice organs as a way of rebuilding institutional credibility in local courts and other organs.
It is meanwhile intensifying social control measures through amendments to the Criminal Law to protect ‘the people’ and the Party from the second threat: dissenters and criminals. In addition, through the new Security Law and Security Commission, it is intensifying national security work by extending the boundaries of conventional domestic politico-legal (政法) work to include more national (and international) security agendas.
These two ‘intensifications’ revolve around Yu Keping’s seventh element, stability. They aim to make stability maintenance the mechanism through which Party supremacy can be protected. It follows that in Xi Jinping’s China, Yu Keping’s idea of ROL as a necessary prerequisite of his seven elements of good governance – fairness participation, responsibility, accountability, transparency, clean government and stability – is not a formulae familiar to the Xi leadership. Rather, the formulae that is becoming increasingly apparent is that the preservation of stability is the prerequisite to effective ROL which, in essence, is Party rule through law.