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Rule of Law Within the Chinese Party-State and Its Recent Tendencies

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Abstract

Due to the particular political reality under the Party-state, neither a substantial nor a formal way is sufficient to grasp the key problem confronting the Chinese rule of law, namely the separation of the Party and the state. This article argues that the precondition for rule of law in the Chinese Party-state lies in the paradox thesis: How and to which extent the separation of the Party and the state within a Party-state is possible and, more importantly, in which sense such a separation is achieved. The author argues that, when under the political reality of Party-state, the kind of Party-state separation in the organizational sense is not realizable in a foreseeable future, the Party-state separation in the functional sense as the basic space should be upheld and maintained, if man can still argue that some kind of rule of law in China exists or is still needed. This article places the general history of rule of law in China under the analytical framework of the separation of the Party and the state and points out that the constitutional confirmation of socialist rule of law state represents the climax of the separation of the Party and the state and the Chinese rule of law itself. Subsequently, it analyses the challenges brought to the Socialist rule of law state by the conception of so-called “rule of law China”, the “intra-Party rule of law” and the justification of the normative superiority the Party Constitution over the state Constitution in recent years.

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Notes

  1. Passed on 23 October, 2014 at the 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party. English version of this Decision, see https://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-the-law-forward/, last visited on February 7, 2017.

  2. The first issue of Hague Journal on the Rule of law in 2015 published totally three articles and two notes discussing rule of law in China, including three authors: Professors Randall Peerenboom, Eva Pils and Sanzhu Zhu. The main debate occurred between Prof. Peerenboom and Prof. Pils.

  3. In his reply to Prof. Pils, who criticizes him fiercely, Prof. Peerenboom reveals that Prof. Pils “is clearly writing from a liberal perspective and focuses almost exclusively on human rights issues” and “assessing the Chinese legal system from the globally dominant liberal democratic rule of law perspective, as is typical among western commentators, she naturally finds it wanting.” This reply makes clear that the way Prof. Peerenboom observes rule of law in China distinguishes itself from an unreflected way dominated by the western hegemony in the discourse on rule of law. Peerenboom (2015a).

  4. In one of his representative works “China’s Long March toward Rule of Law” (Cambridge University Press 2002), Prof. Peerenboom uses the “thin” and “thick” theory on rule of law to interpret the way of Chinese legal reform. In his theory, he discusses the possibility of a type of rule of law which is not based upon Western liberal democracies and argues that the Chinese rule of law can meet the requirements of a thin rule of law. See Peerenboom (2002). Likewise, he also agrees with “a historical-cultural approach” for the comparative study of law which stresses the genealogy of law, legal concepts, rules, and practices across time. See Peerenboom (2009).

  5. Peerenboom (2015b).

  6. Peerenboom (2015b, p. 54).

  7. With respect to the key problem, namely the compatibility of rule of law and single party rule, unlike some western observers who think of the CCP as main obstacle to rule of law, Prof. Peerenboom argues that “the most significant obstacles to rule of law are systemic or institutional in nature”, for example, “a legislative system in disarray; a weak judiciary; poorly trained judges and lawyers; a low level of legal consciousness; a weak administrative law regime” and so on; and “single party socialism in which the Party plays a leading role is in theory compatible with rule of law”. Simultaneously, he tries to develop a so called “Statist Socialist or Neoauthoritarian rule of law” theory as an alternative to a liberal democratic rule of law to explain the Chinese model of rule of law. In this theory, he attributes a positive role to the CCP in the construction of the socialist rule of law: “the Party’s main relevance to rule of law lies in its ability to promote or obstruct further institutional reforms required to implement rule of law.” Peerenboom (2002, pp. 12, 188).

  8. As he says: “I do believe that rule of law, even socialist rule of law with Chinese characteristics, is better than socialism with no rule of law at all, and, for the moment at least, the only type of rule on offer in China is socialist rule of law”. Peerenboom (2015a, p. 95).

  9. Peerenboom (2015b, p. 73). Prof. Sanzhu Zhu shares also the same point of view. See Zhu (2015).

  10. Her perspective can be also traced back to her previous study on Chine which focused on the rights activism in China. See Pils (2009).

  11. Pils (2015a).

  12. Pils (2015a, p. 86).

  13. Pils (2015a, p. 83).

  14. In their debate, both Prof. Peerenboom and Prof. Pils refer to H.L.A. Hart, Lon Fuller and Carl Schmitt. But a unified understanding of them seems impossible. See Pils (2015a, pp. 86, 88, b), Peerenboom (2015a, pp. 91–93).

  15. The substantial way for evaluating rule of law in China has exerted also great influences on Chinese scholarship itself. These influences are concentratedly embodied in the debate on Constitutionalism and the salience of the so-called liberal constitutionalists in recent years. Generally taking western values, such as freedom, democracy, human rights and judicial independence as their points of departure, the liberal Constitutionalists tend to criticize the constitutional status quo in China and require a liberalized political reform and a more liberal and democratic Constitution which can more effectively protect civil rights. Some well summarized points of view of the Chinese liberal constitutionalist, see “The Chinese Debate on Constitutionalism: Texts and Analyses”, https://chinacopyrightandmedia.wordpress.com/2013/06/03/the-chinese-debate-on-constitutionalism-texts-and-analyses-part-i/, last visited on February 10, 2017; Changchang (2016).

  16. Peerenboom (2015a, pp. 92–93).

  17. See Skaaning (2010).

  18. Peerenboom (2002, p. 3).

  19. In the thin theory of rule of law of Joseph Raz, he stresses following components: “Laws are prospective, open, and clear; laws are relatively stable; the making of particular laws is guided by open, stable, clear, and general rules; independence of the judiciary must be guaranteed; principles of natural justice must be observed; courts have review powers over the implementation of the other principles; courts are easily accessible; the discretion of the crime-preventing agencies is not allowed to pervert the law.” Raz (1979).

    Similarly, John Finnis puts emphases on following points: “(1) rules are prospective, not retroactive, and (2) are not in any other way impossible to comply with; (3) rules are promulgated, (4) clear, and (5) coherent one with another; (6) rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; (7) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that (8) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.” Finnis (2011).

  20. Anschütz and Thoma (1930).

  21. Huber (1968).

  22. Benda (1983).

  23. Schmidt-Aßmann (2004).

  24. The legal reform since 1978 is characterized above all with large-scale of legislation. Officially, Wu Bangguo, chairman of the Standing Committee of the National People’s Congress (NPC), proclaimed on March 10th 2011 the total establishment of a socialist legal system with Chinese characteristics (in his report on the fourth session of the 11th NPC). Concerning the present legislation in China, it bears mentioning the legislation law (lifa fa, promulgated in March 2000 and last revised in March 2015 by the NPC) which for the first time widely and systematically stipulates general principles of legislation, legislative competences and procedures of different state organs and the resolution of conflicts between norms with different legal forces, and so on. The existing complete legal system has been a basic indicator of the existence of a formal rule of law in China. Simultaneously, the legal reform has also led to the establishment of relatively complete administrative and judicial systems in which some key elements of a formal rule of law, for instance, the legality of administration, the limited government, the independence of courts, the procedural justice, are repeatedly emphasized. In this sense, rule of law in China can to a large extent measure up to its western counterpart.

    Certain elements, such as the establishing of a constitutional court (or constitutional committee) to control and oversee acts of both state and Party, and the fulfillment of a substantial – that means not merely functional – separation of powers within the state, albeit their prevalence in western rule of law, have been constantly refused by the CCP, for they are heavily at odds with the present political system and dominant socialist ideology in China. Thus, in the given circumstance of China, such elements in large part cannot be fully categorized as an issue of formal rule of law, or even as a pure legal issue.

  25. See Peerenboom (2002, pp. 9–10).

  26. Peerenboom (2002, p. 212).

  27. Zhonggong zhongyang guanyu feichu guomindang de liufa quanshu yu queding jiefang qu de sifa yuanze de zhishi (on February 28, 1949). English version, see https://chinacopyrightandmedia.wordpress.com/1949/02/28/instructions-concerning-abolishing-the-six-codes-of-the-guomindang-and-determining-judicial-principles-for-the-liberated-areas/, last visited on October 30, 2016.

  28. From 1949 to 1957, there were almost no laws regulating ordinary realms of the state except one marriage law (1950). Several other existing laws concerned only the organization of state organs which were urgent for endowing the ruling of the CCP with legitimacy, for example, the election law of the National People’ Congress and regional people’ congresses at all levels (1953), the organizational law of the National People’s Congress (1954), the organizational law of people’s courts (1954), the organizational law of people’s procuracies (1954) and the organizational law of regional people’s congresses and regional people’s committees at all levels (1954).

  29. “The onset of the Anti-Rightist Campaign in 1957 brought an abrupt end to any hopes of replacing institutional reliance on Party and state administrative directives with even a basic core of substantive legislation.” Keller (Autumn, 1994).

  30. There was a considerable amount of such policies, as illustrations: The instruction of the CCP Central Committee concerning the establishing of food market in the given time (1954); the instruction of the CCP Central Committee concerning vigorously protecting farm animals (1955); the instruction of the CCP Central Committee concerning handling reactionary, obscene and absurd books, magazines and pictures and strengthening the regulation and transformation of private cultural enterprises (1955). A systematic compilation of this kind of policies, see Literature Research Office of CCP Central Committee (edited), Collection of Important Documents since the Founding of the People’s Republic of China (jianguo yilai zhongyao wenxian xuanbian), Central Party Literature Press 1993, 1994, volumes 1 to 20.

  31. An observation from the perspective of criminal process at that time: “Official doctrine states that in the absence of express proscriptions, the relevant resolutions, decisions, orders, instructions, and policies of the Party and the government should be taken as the basis for determining whether or not a crime has been committed”. Cohen (1966).

  32. Article 47 of the 1954 Constitution of the PRC provided: “The State Council of the People’s Republic of China, that is, the Central People’s Government, is the executive organ of the highest organ of state power; it is the highest organ of state administration.”

  33. These joint regulations handled concrete problems within the state, for example, the instruction of the CCP Central Committee and the State Council concerning strengthening the production leadership and organizational construction of agricultural production cooperatives (1956); The instruction of the CCP Central Committee and the State Council concerning the education work (1958); the resolution of the CCP Central Committee and the State Council concerning strengthening und unifying the bank work and strictly controlling currency issue (1962). More examples, see Literature Research Office of CCP Central Committee (edited), Collection of Important Documents since the Founding of the People’s Republic of China, Central Party Literature Press 1993, 1994, volumes 8 to 20.

  34. In the “Decision of the CCP Central Committee concerning the Great Proletarian Cultural Revolution (on August 8, 1966)”, revolutionary groups, committees were defined as organs of power. All previous formal state organs ceased to work.

  35. One of the main characteristics of the political and legal system during the Cultural Revolution can be summarized as the personality cult of Mao Zedong. At the beginning of the PRC, Mao himself was proponent of the construction of a formal state legal system which can be evidenced by the fact that he was the main participant of the making of the 1954 Constitution. However, the foremost value of law (including the Constitution) was regarded by him merely as a means to confirm and safeguard the revolution success. Thus, after he felt the necessity of re-revolution within the PRC, the fate of the legal system being totally ruined was unavoidable.

    During the Cultural Revolution, Mao made also another Constitution (the 1975 Constitution). Encompassing only 30 articles, the 1975 Constitution is the crudest Constitution in the history of the PRC. In the content, it placed great weight on class struggle and extreme-leftist ideology and emphasized the necessity of continuous revolution (Art. 12, 13). In this sense, it is not a constitution in legal sense, but one of total political and ideological nature which served the Cultural Revolution itself. Shortly after the Cultural Revolution, the 1978 Constitution was adopted. Although it revised the 1975 Constitution immensely, it was still trapped in the dominant ideology of class struggle (preamble and Art. 45) and was replaced soon by a more “normal” Constitution in 1982.

  36. Speech at the closing session of the Central Working Conference which made preparations for the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party that immediately followed. English version, see https://dengxiaopingworks.wordpress.com/2013/02/25/emancipate-the-mind-seek-truth-from-facts-and-unite-as-one-in-looking-to-the-future/, last visited on October 27, 2016.

  37. English version of this communiqué, see http://www.bjreview.com/nation/txt/2009-05/26/content_197538.htm, last visited on October 27, 2016.

  38. In Chinese language, the word “zhengfu (政府)” has twofold meanings. In a narrow sense, it refers specially to executive organs of the state at various levels. In a broad sense, it refers to the whole set of intra-state institutions including also legislative and judicial organs as opposition of the society, in this regard, “government” is identical with state as a whole. In the speeches of Deng Xiaoping, he often used “separation of the Party and the government”. However, he didn’t only intend to separate the Party from executive work. Rather, he required that the Party should generally retreat from all the works of the state for which the own organs of the state should and could be responsible, for example, the Party Committees should not interfere in judicial works of courts.

  39. Dang he guojia lingdao zhidu de gaige, English version, see http://en.people.cn/dengxp/vol2/text/b1460.html, last visited on November 2, 2016.

  40. In essence, Deng Xiaoping attributed the fundamental reasons for the political catastrophe during the Cultural Revolution to the lack of democratic rights of the people (in the sense of democratic centralism) and the degeneration of collective leadership into personality cult. So, as quoted above, the primary goal of the reconstruction of legal system was to reconfirm people’s democracy and let it be institutionalized and written into law.

  41. On reform of the political structure (September–November 1986, guanyu zhengzhi tizhi gaige wenti), English version, see http://cpcchina.chinadaily.com.cn/2010-10/25/content_13918373.htm, last visited on November 3, 2016.

  42. Among the three kinds of leadership of the Party, namely political, ideological and organizational leadership, which are provided in the Party Constitution of the CCP, the organizational leadership has a decisive role, for all the political and ideological controls of the CCP can be attained only if they are organizationally realized. Additionally, the leadership of the Party was defined as one of the four fundamental principles for the Reform and Opening which also helped maintain the absolute organizational control of the Party over state.

  43. The Constitution of the People’s Republic of China, Preamble.

  44. Except laws on forest, criminal procedure, Chinese-foreign equity joint ventures and environmental protection which had already been formulated in 1979, the most concrete laws were enacted in 1980s, for example, Individual Income Tax Law of the People’s Republic of China (1980), Cultural Relics Protection Law of the People’s Republic of China (1982), Maritime Traffic Safety Law of the People’s Republic of China (1983), and so on. The nationwide legislation movements gave rise to a relatively complete legal system which, formally seen, distinguished itself hardly from its western counterpart. A systematic collection of laws and norms with law nature in the 1980s, see Beida fabao legal database from No. 1946 (http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=663&keyword=&EncodingName=&Search_Mode=accurate) to No. 1652 (http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=175047&keyword=&EncodingName=&Search_Mode=accurate), last visited on November 4, 2016.

  45. Adopted by the Third Plenary Session of the 14th CCP Central Committee on November 14, 1993.

  46. As further argument, it is worth quoting another important official formulation in 1996: “It ought to insist on the unification of the Reform and Opening and the legal system construction and achieve a close combination of reform decision (gaige juece), development decision (fazhan juece) and legislation decision (lifa juece). We must put the economic legislation in an important place and wield laws to guide, promote and guarantee the healthy development of the socialist market economy. Further, we must formulate and improve laws concerning stipulating market subjects and conducts, safeguarding market order, ameliorating and strengthening macro-economic control, establishing and perfecting the social security system and boosting the opening to the outside and laws on revitalizing basic and pillar industries, normalizing governmental conducts, protecting environment and intellectual property.” See the Ninth Five-Year Plan on National Economy and Social Development and Long-Range Objectives to the Year 2010, approved by the fourth session of the 8th NPC on March 17, 1996.

  47. It is undeniable that since the late 1980s some important measures have been taken to push forward the political reform, especially to limit the power of the government, for example, the enactments of following laws on normalizing and constraining governmental conducts: the administrative procedure law (1989), the state compensation law (1994), the administrative penalties law (1996), the administrative review law (1999). Nevertheless, a more essential political reform has been impeded by some major defects: low-level democracy and symbolic election system at all levels, limited public participation, executive dominance, weakness of people’s congresses and their Standing Committees at all levels especially in their supervision competence, non-independence of judiciary, and so on.

  48. The constitutional amendment in 1999 adopted consciously the new conception “fazhi (法治)” whereas abandoning the previously prevalent usage of “fazhi (法制)”. Whilst “fazhi (法治)” means in its English counterpart “rule of law”, “fazhi (法制)” means purely textually “legal system” and can usually be translated as “rule by law”.

    This seeming terminological progress brings however no parallel progress in substantial law understanding in China, for both “fazhi (法制)” and “fazhi (法治)” are generally limited by a pre-posed modifier “governing the country according to law” which defines essentially law as some kind of instrument for ruling and precludes any possibility to add some western connotations of rule of law into Chinese “fazhi (法治).” What for understanding of the evolution history from “fazhi (法制)” to “fazhi (法治)” decisive is the report of Jiang Zemin on the Fifteenth National Congress of the CCP (on September 12, 1997) which officially combined “constructing a socialist ‘fazhi (法治)’ state” with “governing the country according to law” for the first time, witnessed the transition of official legal narrative and determined the basic keynote of law understanding for the later constitutional amendment. Chinese version of this report, see http://cpc.people.com.cn/GB/64162/64168/64568/65445/4526285.html, last visited on February 8, 2017.

  49. For example, in their interpretations, some legal scholars combined the key reasons of the adopting socialist rule of law with realizing the people’s democracy, constraining state powers and protecting the people’s rights. See Sun and Huang (1998), Wang (1999), Gu (1999), Chen (2001).

  50. As the legislative history shows, some conspicuous substantive values, for instance, the protection of human rights and the protection of private property were incorporated into the Constitution only through the amendment of 2004. Further, in the current constitutional system, due to lacking necessary institutional guarantee (for example the absence of constitutional court) and methodologically dogmatic preparations, how these even constitutionally confirmed values can be realized in the socialist rule of law state, stays highly problematic.

  51. The normative analysis on constitutional provisions regarding the socialist rule of law shows that the constitutionally confirmed “socialist rule of law” doesn’t go beyond the scope of law values (stability, continuity, authority and equality of all people before the law) defined by Deng Xiaoping. The constitutional provision concerning the socialist rule of law is article 5 including 5 sections. Through the amendment in 1999, article 5 was added with a new section as the first section which provides: “The People’s Republic of China governs the country according to law and makes it a socialist country under rule of law.” However, the concrete connotations of this section can be explained only together other four sections which remained the same as provided in the original version of the 1982 Constitution. These four sections provide: The state upholds the uniformity and dignity of the socialist legal system (Section 2); no laws or administrative or local regulations may contravene the Constitution (Section 3); all state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated (Section 4); no organization or individual is privileged to be beyond the Constitution or other laws (Section 5). On the whole, these four sections are embodiments of the law understanding of Deng Xiaoping and demonstrate that the constitutional conformation of socialist rule of law hasn’t brought new meanings to the law understanding since the Reform and Opening.

  52. See Stahnke (1966-1967), Zheng (1999), Xie (1994).

  53. Some justifications arguing that the role of the ruling party in a parliamentary multi-party system is similar in many respects to the role of the CCP in a single-party system and the mere fact that a ruling party is effective at having its policies become law is not inconsistent with rule of law, see Peerenboom (2002, p. 215).

  54. With the terminology “pan-politicalized” the author means principally that evaluations made on Chinese law tend to be trapped into its pure political and ideological dimension. A pan-politicalized understanding is apt to unexamined enlarge the ideological distrust on the CCP to the legal system under its leadership. As demonstrated in the debate introduced at the beginning of this article, a pan-politicalized understanding of Chinese law questions mainly its overall political and ideological legitimacy, ignoring (consciously or unconsciously) however the natural and independent value of a legal system in regulating a modern society. What for a pan-politicalized understanding typical are the criterions chosen for making evaluation, such as human rights, separation of powers, source of political legitimacy liberal and democratic theories (all in the pure western sense) or even “civil disobedience”, “right of resistance” as employed by Prof. Pils. (see also, Pils 2016) It is not the author’s point of view that no substantial evaluations should be made on Chinese law. However, simplifying all problems in current Chinese political and legal system to the political problem (of the CCP) doesn’t help to grasp the real and entire face of the problems themselves.

  55. Generally, the experimental making of policies and laws stems from the pragmaticism advocated by Deng Xiaoping which emphasizes gathering, collating and analyzing of partial local experiences and, when applicable, modifying and generalizing them nationwide. Some discussions on the experimental nature of policy and law making in China, see Heilmann (2008), Peerenboom (2015a, p. 62), Tsai and Dean (2014), Heilmann et al. (2013).

  56. Drawing on the “institutional power” and the corresponding shift of legislative powers from the CCP to sate organs including the NPC and the State Council, the author argues that lawmaking in China was decentralized and became a “multi-arena” rather than a “unitary” process and the CCP lost its total control over lawmaking. See Tanner (1994). Some similar observations summarized as the “retreat of the Party from the state”, see Peerenboom (2002, pp. 10–11, 188, 217).

  57. The legislation law is the first law in China aimed at systematizing and rationalizing the state legislation. Through the definition and clarification of legislative subjects at all levels, their corresponding legislative competences and procedures as well as the establishment of a system for conflicts resolution between legal norms with different rankings, the legislative system in China is immensely formalized.

    However, the foremost significance of the Legislation Law lies in the delimitation of normative sources of state laws. It stipulates the Constitution (xianfa), laws of the NPC and its Standing Committee (falü), executive regulations (xingzheng fagui), local regulations (difang xing fagui), rules of ministries and commissions (buwei guizhang) and rules of local governments (difang zhengfu guizhang) as formal legal sources, excludes definitely the possibility that policies of the CCP act as directly legally binding norms for state, society and individuals.

  58. “Party members and government officials are required to comply with the law, and in practice their behavior is increasingly constrained by law.” Peerenboom (2002, p. 10).

  59. In his speech on 10th 2011, Wu Bangguo, chairman of the Standing Committee of the National People’s Congress said: “Until the end of 2010, there have been 236 laws, more than 690 administrative regulations (xingzheng fagui) and over 8600 local regulations (difangxing fagui) in China. […] Currently, law departments covering all aspects of social relationships have been complete; fundamental and principal laws in each law department have been enacted; corresponding administrative and local regulations are relatively complete; on the whole, the legal system is internally scientific, harmonious and unified.” Wu Bangguo, The Socialist Legal System with Chinese Characteristics Has Been Established (zhongguo tese shehui zhuyi falü tixi yijing xingcheng), see http://www.npc.gov.cn/npc/xinwen/lfgz/lfdt/2011-01/27/content_1618076.htm, last visited on November 18, 2016.

  60. The most notable institutional improvements emerged in the field of judiciary. Since the late 1990s, Chinas has experienced several rounds of judicial reform. The first-round of judicial reform was initiated by the Supreme People’s Court in 1999. In its “5-year Reform Program of the People’s Courts”, the Supreme People’s Courts proposed wide-ranging measures to promote judicial professionalism and independence, strengthen role of judges, improve the trial mode and methods of producing evidences, and so on. Henceforth, the judicial reform became a key component of the construction of the socialist rule of las state and was repeatedly stressed in important documents of the Party and state laws after 2000.

  61. Zhonggong zhongyang guanyu quanmian shenhua gaige ruogan zhongda wenti de jueding, adopted at the third plenary Session of the 18th Central Committee of the Communist Party of China on November 12, 2013. English version of this Decision, see http://www.china.org.cn/china/third_plenary_session/2014-01/16/content_31212602.htm, last visited on February 7, 2017.

  62. Zhonggong zhongyang guanyu quanmian tuijin yifa zhiguo ruogan zhongda wenti de jueding, adopted at the fourth plenary session of the 18th Central Committee of the Communist Party of China on October 23, 2014.

  63. See Ge (2013), Huang (2013), Sun (2013), Yang (2013), Jiang (2013).

  64. Part 9 of the Decision 2013.

  65. Part 9, paragraph 1 of the Decision 2013 provided that: “To construct a rule of law China, we must persist in moving governing the country according to the law, governance according to the law and administration according to the law forward jointly, and persist in the integrated construction of a rule of law country, a rule of law government and a rule of law society.”

  66. Part 7, paragraph 4 of the Decision 2014.

  67. Zhongguo gongchandang dangnei fagui zhiding tiaoli, passed on May 27, 2013.

  68. Zhongguo gongchandang dangnei fagui he guifan xing wenjian bei’an guiding, passed on May 27, 2013.

  69. For instance, the CCP temporary regulation on Party organization work (zhongguo gongchandang dangzu gongzuo tiaoli (shixing), passed on June 11, 2015); the CCP regulation on inspection work (zhongguo gongchandang xunshi gongzuo tiaoli, passed on August 3, 2015); the CCP norms on probity and self-discipline (zhongguo gongchandang lianjie zilü zhunze, passed on October 12, 2015); the CCP regulation on local Party committees work (zhongguo gongchandang difang weiyuanhui gongzuo tiaoli, passed on December 25, 2015); the CCP regulation on selecting and appointing cadres of the Party and the Government (zhongguo gongchandang dangzheng ganbu xuanba renyong tiaoli, passed on October 28, 2015); the CCP regulation on disciplinary punishments (zhongguo gongchandang jilü chufeng tiaoli, passed on January 1, 2016); the CCP regulation on accountability (zhongguo gongchandang wenze tiaoli, passed on July 7, 2016); the CCP regulation on intra-Party supervision (zhongguo gongchandang dangnei jiandu tiaoli, passed on October 27, 2016).

  70. Explanation concerning the “CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward” (on October 29, 2014).

  71. The “CCP regulation on disciplinary punishments” is one of the most important intra-Party regulations and is known as intra-Party “criminal law”. Notwithstanding its significance, this regulation is filled of considerable amount of uncertain terms which leave huge discretionary space for its application. For example, it defines following behaviors as disciplinarily punishable: unscrupulous discussing of the major policies and guidelines of the Party Center and damaging the concentrated unification of the Party (article 46, section 2); establishing gangs within the Party, forming clique to pursue selfish interests, building up one's personal influence to gain political capital (article 52), and so on.

  72. General Program, paragraph 1 of the CCP Party Constitution stipulates: “The Communist Party of China is the vanguard both of the Chinese working class and of the Chinese people and the Chinese nation.”

  73. Since years, in the field of corruption investigation on Party members, the means of so-called “shuanggui (双规), two-givens” has been used by the CCP. The basis of Shuanggui is the “CCP regulation on cases inspecting work of disciplinary inspection organs (zhongguo gongchandang jilü jiancha jiguan anjian jiancha gongzuo tiaoli)”, article 28 No. 3 of which provides: The Party investigating group can order the involved person to make explanations on relevant problems in a given time and at a given place. These two “givens” are however not defined and must be subject to the discretion of the Party investigating group.

    This intra-Party investigation means is in fact an extra-judicial detention which contravenes the due process principle of the state criminal law, and moreover, runs also counter to the general principles of rule of law state: equality of all people before law and the protection of human rights (article 33 sections 2 and 3 of the PRC Constitution). In the practice, state official who is faced with corruption accusations must be first subject to the intra-Party investigation procedure. It means that the accused official must undergo more investigations than ordinary citizens. What’s more important is, however, that whether an accused official will be handed over to state judicial organs for a formal trial depends highly on the results of this proposed and not open procedure, thus, it cannot be generally excluded that a state official who committed virtually crimes could be free of being accused in the formal judicial procedure based on his Party membership. In this sense, shuanggui could create a privilege of state officials with Party membership to be immune to state formal trial.

    Moreover, how evidences and testimonies acquired during the shuanggui procedure can be legally evaluated and adopted as evidence and testimonies in the sense of criminal law is also highly problematic, for example, can they be seen as surrender of the suspect? Due to the high political sensibility of shuanggui, (even pro-CCP) articles discussing shuanggui are quite limited. Some existing articles, see Wang (2008), Liu (2005, 2014), Yu (2006). An Article justifying the constitutionality of shuanggui in the current constitutional order of a western legal scholar, see Backer and Wang (2014).

  74. The current so-called political constitutional theory contains mainly three directions:

    1. Putting its main focus on the preamble of the PRC Constitution which is the unique place where the position of the CCP in the text of the Constitution is mentioned, the first direction argues that the state Constitution itself contains “a first fundamental law” (diyi genben fa, 第一根本法), namely the leadership of the CCP. Further, it argues that the Constitution is the mere articulation of the people’s will under the leadership of the CCP and, thus, a pure political decision and all conflicts surrounding the Constitution should be politically resolved instead of appealing to an independent constitutional court within the state so that the first fundamental law will not be threatened and damaged. In this regard, it denies the judicial applicability and the implementing necessity of the PRC Constitution and argues that China should insist on a political constitutionalism with Chinese Characteristics (zhongguo tese zhengzhi xianzheng zhuyi, 中国特色政治宪政主义). See Chen (2008).

    2. The second direction of the political constitutional theory insists on a so-called constitutional historicism. It argues that “the problem consciousness of the political constitutional theory is closely combined with the consciousness of history. […] If one doesn’t understand the Chinese history of state building, revolution, Constitution making, reform, existence and freedom since modern times, he cannot understand the Chinese political constitutional theory either.” It emphasizes the Genesis of Constitution and the so-called “Constitution making moment (zhixian shike, 制宪时刻)” and tries to place the current constitutional reality in the unique historical context of China and legitimize the CCP and its supra-state position historically. See Gao (2013).

    3. A more radical theoretical path tries to categorize the Party Constitutional as an unwritten Constitution and endow it with a force which trumps the force of the state Constitution. It argues that, with respect to the real normative function, the CCP Constitution is much more important than the state Constitution. In this sense, the CCP Constitution is regarded as “natural law” or “Grundnorm (a term of Hans Kelsen, ground norm)” whereas the state Constitution is viewed as positive law which must have the former as its benchmark and the authority of the latter should be ensured by the Authority of the former. Further, this theoretical path is strongly against the so-called “centralism of state laws (guojiafa zhongxin zhuyi, 国家法中心主义)” which, according its own understanding, qualifies only state formal laws as normative sources. On the contrary, it argues that the intra-Party normative system with the CCP Constitution as its head must also be adopted as a kind of normative source. See Jiang (2009, 2015a, b, 2016). Similar points of view from the west, see Backer (2009, 2012).

  75. Chen (2008, p. 502).

  76. Jiang (2014).

  77. Tian (2013), Gao (2012).

  78. Gao and Tian (2011).

  79. Gao (2013, pp. 24, 25).

  80. “The political constitutional theory doesn’t focus on the normative interpretations of the articles of the Constitution.” Gao (2013, p. 24).

  81. In China, this constitutional school is called “normative constitutional school (guifan xianfa xue, 规范宪法学)” which stresses the scientific enforcement of the Constitution through establishing a complete interpretation schema for the Constitution, as two representatives of the normative constitutional school pointed out: “We must respect and trust the text of the Constitution. When we encounter constitutional problems, we shouldn’t seek answers outside the text of the Constitution. Rather, we should seek criterion within the text of the Constitution”; “the function of the normative constitutional school is to gradually establish a system for the Chinese constitutional theory and promote the enforcement of the Constitution and […] enhance the development of the constitutionalism in China.” Dayuan Han, Laifan Lin, Debates on Research Methods of the Chinese Constitutional Theory (zhongguo xianfaxue yanjiu fangfa zhi bian, on December 5, 2012), see http://www.calaw.cn/article/default.asp?id=7974, last visited on November 17, 2016.

  82. As one representative of the political constitutional theory pointe out: “The interpretation of the first fundamental law (namely the leadership of the CCP) is a mere political judgement. No court can undertake such a judgement.” Chen (2008, p. 504).

  83. In the Decision 2013, it is provided that “The Constitution is the basic law that guarantees that the Party and the country flourish and grow, and will know a long period of peace and order, and has the highest authority. We must further complete mechanisms and procedures for constitutional implementation and supervision, and raise the comprehensive implementation of the Constitution to a new level. We must establish and complete systems by which the entire society is faithful to, respects, safeguards and utilizes the Constitution.”

    In the Decision 2014, it is more detailedly stipulated that “To persist in ruling the country according to the law, we must first and foremost persist in ruling the country according to the Constitution, to persist in governing according to the law, we must first and foremost persist in governing according to the Constitution. The people of all ethnicities in the entire country, all state bodies and armed forces, all political parties and all social organizations, all enterprises, undertakings and groups must consider the Constitution as the basic behavioural norm, and bear the duty of upholding the dignity of the Constitution and guaranteeing the implementation of the Constitution. All acts violating the Constitution must be punished and corrected.”

  84. Compared with the emphasis on the authority of the Constitution and the general function of rule of law, the Decisions put more importance on the absolute leadership of the CCP and the ideological security of the legal reform. In the Decision 2014, persisting in the leadership of the CCP is defined as the first principle of the legal reform. Further, the ideological aspect of the legal reform is also notably strengthened: “To completely move ruling the country according to the law forward, we must implement the spirit of the 18th Party Congress and the 3rd Plenum of the 18th Party Congress, hold high the magnificent banner of Socialism with Chinese characteristics, take Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the important ‘Three Represents’ thought, and the scientific development view as guidance, deeply study the spirit of the series of important speeches by General Secretary Xi Jinping, persist in the organic unity of the leadership of the Party, the people mastering their own affairs, and ruling the country according to the law, unwaveringly march the path of Socialist rule of law with Chinese characteristics […].”

  85. In the current constitutional system of China, the competence to supervise the enforcement of the Constitution is assigned to both the NPC and its Standing Committee (article 62 No. 2 and article 67 No. 1 of the PRC Constitution) and the competence to interpret the Constitution is entrusted to the Standing Committee of the NPC (article 67 No. 1 of the PRC Constitution). However, these competences haven’t been exercised even once by the NPC and its Standing Committee from the early 1980s until now. The constitutional implement in such a legislative way isn’t improved after the Decision 2014 either. Some suggestions, for example, to promulgate a so-called “Constitution interpretation procedure law (xianfa jieshi chengxu fa, 宪法解释程序法)” aimed at activating the NPC and its Standing Committee in the implement of Constitution, remain merely theoretical. See Han (2009), Qin (2015), Liu (2015).

    Meantime, a judicial way for the enforcement of the Constitution through the establishment of an independent constitutional court or committee, due to its notable inconsistence with the current Party-state reality and the recent tighter ideological control dismissing a constitutional court or committee as a component of western constitutionalism, is impossible to get an institutional breakthrough in a foreseeable future. The two realized institutional improvements after the Decision 2014, namely the confirmation of December 4 as National Constitution Day and the establishment of a constitutional oath system (which requires that all State personnel elected or appointed by the National People’s Congress and its Standing Committee are to openly swear a constitutional oath when taking office), are in essence more symbolic, touch, however, rarely the core problem of Constitution enforcement.

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Acknowledgements

The author would like to thank the anonymous reviewers for their valuable and insightful comments and suggestions on the first version of this paper. All possible faults are the author’s own.

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Zhang, X. Rule of Law Within the Chinese Party-State and Its Recent Tendencies. Hague J Rule Law 9, 373–400 (2017). https://doi.org/10.1007/s40803-017-0052-3

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