Abstract
This article begins with a genuine reform aiming to modernize the Party–state relationship—the brave blueprint presented by General Secretary Zhao Ziyang in 1987 at the 13th National Congress of the CCP, proposing to separate the Party and administration. Like any previous genuine reform in China, however, the separation reform quickly foiled and has been forgotten since the crackdown in 1989. The article moves on to discuss reform in the very opposite direction—the centralization of political and judicial powers since General Secretary Xi Jinping took over in 2013, accompanied by massive anticorruption campaigns and, at the same time, systematic restriction of civil and political rights. It then refutes the claim that the centralization reform is buttressed by reliable public opinion support and follows the logic of authoritarian legality. It predicts that, without reliable grassroots support, a purely top-down reform characterized by an elaborate supervisory system and the anticorruption campaign will fail to achieve its stated purpose, nor will the judicial reform make substantive progress. The article concludes by reinstating that the separation of the Party and administration is the only path for China’s legal reform to make genuine progress under the existing regime.
The paper was presented at the Workshop on Parties, Partisanship, and the Constitution, University of Oxford in June 2019 and China Reform Forum 2019, Georgetown University in August 2019. I thank Ewan Smith, Tom Kellogg and Donald Clarke for their invitations and comments on the paper, and the participants for helpful discussions. Certain sections of this chapter draw from the author’s previous work: Qianfan Zhang, ‘The Communist Party Leadership and Rule of Law: A Tale of Two Reforms’, (2020) Journal of Contemporary China https://doi.org/10.1080/10670564.2020.1852743 accessed 6 March 2021.
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Notes
- 1.
Jiang Zemin became the General Secretary of the CCP Central Committee in June 1989, the Chairman of CMC in March 1990 and the President of the State in March 1993, and held these positions until 2002, March 2005 and March 2003, respectively.
- 2.
Deng Xiaoping, ‘On the Reform of the System of Party and State Leadership’, 18 August 1980, https://dengxiaopingworks.wordpress.com/2013/02/25/on-the-reform-of-the-system-of-party-and-state-leadership accessed 15 December 2020. The seven members of the Central Consultative Committee (zhongyang guwen weiyuanhui) agreed to resign their party posts before the convening of the Thirteenth National Congress of the CCP in 1987, setting the precedent for abolishing the life tenure of leading cadres, while Deng Xiaoping remained the Chairman of the CMC until 1990. See Sun Liping, ‘Deng Xiaoping’s Strategic Decision and Historical Achievement for Abolishing the Life Tenure of Cadre’s Leadership Positions’, Studies in Party History of the CCP 2014 http://www.zgdsw.org.cn/n/2014/0804/c349708-25399566-3.html accessed 15 December 2020.
- 3.
Cheng Li, Chinese Politics In The Xi Jinping Era: Reassessing Collective Leadership (Brookings Institution Press 2016); Stein Ringen, The Perfect Dictatorship: China in the 21st Century (Hong Kong University Press2018); Suisheng Zhao, ‘Xi Jinping’s Maoist Revival’, (2016) 27:3 Journal of Democracy 83, 92–96; Andrew Nathan, ‘China: Back to the Future’, The New York Review, (10 May2018) http://www.nybooks.com/articles/2018/05/10/china-back-to-the-future/; Jiayang Fan, ‘Xi Jiping and the Perils of One-Person Rule in China’, The New Yorker (1 March 2018) https://www.newyorker.com/news/daily-comment/xi-jinping-and-the-perils-of-one-person-rule-in-china accessed 16 December 2020.
- 4.
On that day the police stormed the Beijing Fengrui Law Office and arrested a dozen lawyers, summoning hundreds of lawyers nationwide to investigate their connections with Fengrui. Zhou Shifeng, its director, was forced to openly confess the commission of subversion of state regime on the China Central Television (CCTV), and was sentenced to seven years imprisonment. The last lawyer defendant, Wang Quanzhang, was tried and convicted after being detained for three and half years after his arrest. See ‘Wang Quanzhang: China jails leading human rights lawyer’, BBC News (28 January 2019) https://www.bbc.co.uk/news/world-asia-china-47024825.
- 5.
Recently, 45 correspondents are arrested for their association with Bitter Winter, a magazine devoted to China’s religious freedom and human rights. See Marco Respinti, ‘The Fate of 45 Arrested Correspondents’, Bitter Winter (11 February 2019) https://zh.bitterwinter.org/fate-bitter-winters-45-arrested-reporters/ accessed 16 December 2020.
- 6.
See Carl Minzner, ‘China’s Turn Against Law’, (2011) 59 AM. J. COMP. L. 936.
- 7.
PRC Constitution, Art 33.
- 8.
PRC Constitution, Art 5.
- 9.
‘The Outline of the Five-Year Reform of the People’s Court’, Xinhua Daily (25 October 1999), B1.
- 10.
‘Reply Regarding Whether One Who Violated the Constitutionally Protected Basic Right to Education of the Citizen Should Bear Civil Obligation’, Judicial Interpretation [2001] No. 25.
- 11.
Qianfan Zhang, ‘A Constitution without Constitutionalism? The Paths of Constitutional Developments in China’, (2010) 8 Int’l J. Const. L. 950. See also Mary E Gallagher, ‘Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness’, (2006) 40 L. & Soc’y Rev. 783.
- 12.
‘Prominent Chinese scholars push for consensus in hope of mild political reform, not revolution’, Fox News (26 December 2012) http://www.foxnews.com/world/2012/12/26/prominent-chinese-scholars-push-for-consensus-in-hope-mild-political-reform-not/ accessed 17 December 2020.
- 13.
Susan Shirk, ‘The Return to Personalistic Rule’, (2018) 29 J. DEM. 22. See also Elizabeth Economy, ‘China’s Neo-Maoist Moment: How Xi Jinping Is Using China’s Past to Accomplish What His Predecessors Could Not’, Foreign Affairs (1 October 2019) https://www.foreignaffairs.com/articles/china/2019-10-01/chinas-neo-maoist-moment accessed 17 December 2020.
- 14.
Both were prominent public intellectuals: Wang Ying, an entrepreneur, and independent historian, Zhang Lifan.
- 15.
Eva Pils, China’s Human Rights Lawyers: Advocacy and Resistance (Routledge 2015); Eva Pils, Human Rights In China: A Social Practice In The Shadows Of Authoritarianism (Polity 2017).
- 16.
For the analysis of the Cultural Revolution (1966–76), see Gao and Yan Jiaqi, The Ten Years History of The Great Cultural Revolution, 1966–1976 (Tianjin renmin chubanshe 1986).
- 17.
Although it is inaccurate to describe contemporary China as ‘authoritarian’, and there is an on-going debate whether it should be characterized as ‘post’ or ‘neo’ totalitarian regime, I will not get into such a debate in this article and will use these terms interchangeably. See Qianfan Zhang, ‘The Construction and Deconstruction of Totalitarianism’, (2016) 1 China Strategic Analysis 25–53.
- 18.
The rule of party was expounded first by Sun Yat-sen in his Outline of Founding the National Government in 1924, and fully implemented by his successor Chiang Kai-shek during the 1930s. See Li Guilian, ‘From Rule of Law to Rule of Party: The Transformation of Sun Yat-sen’s Thought’, (2013) 6 Yanhuang Chunqiu 42.
- 19.
Zhao Ziyang, ‘On the Separation of the Party and Administration, Speech on the Preparatory Meeting for the Seventh Plenary Session of the 12th CCPCC’, 14 October 1987.
- 20.
The notion was formally recognized in the Constitution through amendment only in March 1993, while the amendment in 1988 merely legalized private economy and the transfer of the right to use land.
- 21.
Dangzheng fenli, here translated as the separation of the party and the administration rather than politics (zhengzhi) or government (zhengfu), since under this notion, the ruling party would still play a leading (though now limited) role in politics and government.
- 22.
Zhao Ziyang (n 19).
- 23.
This would require the party secretary to take over the leadership of the people’s congress at the same level, which has been the trend in the recent decade. Dingping Guo, ‘The Changing Patterns of Communist Party-State Relations in China: Comparative Perspective’, (2015) 31J. E. ASIAN AFF. 65, 67. The merging of the Party with the legislature has not been followed by the detachment of the Party from the administration and judiciary as proposed in the political reform during the 1980s.
- 24.
Zhao Ziyang, ‘March Along the Socialist Road with Chinese Characters, Report on the 13th National Congress of the CCP’, 25 October 1987 http://cpc.people.com.cn/GB/64162/64168/64566/65447/4441804.html accessed 17 December 2020.
- 25.
ibid.
- 26.
The word ‘law’ (falv) in its technical sense has been exclusively reserved for the legislations passed by the National People’s Congress or its Standing Committee, while some local people’s congresses and governments have the power to pass local regulations (fagui) and rules (guizhang), respectively. See Qianfan Zhang, The Constitution Of China: A Contextual Analysis (Hart Publishing 2012), Ch 3.
- 27.
Treaty of European Union, Art 3b; See also, the German Basic Law, Art 23.1. The French adaption of the subsidiary principle can be found in the Charter of Deconcentration, Decree No. 92–604, 1 July 1992.
- 28.
Zhao Ziyang (n 24).
- 29.
Deng Xiaoping, ‘Speech on the Southern Tour’, 2 January 1992 http://finance.ifeng.com/opinion/zjgc/20111231/5389402.shtml accessed 17 December 2020.
- 30.
The other 24 members of the CCP Politburo, including the other six members of its Standing Committee, the supreme organ of the Party, are now required to periodically submit to Xi written ‘debriefing’ (shuzhi), reporting their works and activities, and to reflect on any deficiencies: see http://www.xinhuanet.com/politics/leaders/2019-02/28/c_1124176936.htm accessed 17 December 2020.
- 31.
Zhao Ziyang (n 24).
- 32.
ibid.
- 33.
Carl Minzner, ‘China’s Turn Against Law’, (2011) 59 AM. J. COMP. L. 936. See also Carl Minzner, End of An Era: How China's Authoritarian Revival is Undermining its Rise (OUP 2018).
- 34.
Ling Li, ‘“Rule of Law” in a Party-State: A Conceptual Interpretive Framework of the Constitutional Reality of China’ (2015) 2 Asian J L & Society 93.
- 35.
Qianfan Zhang, ‘Judicial Reform in China: An Overview’, in John Garrick and Yan Chang Bennett eds, China’s Socialist RuleOfLaw Reform Under Xi Jinping (Routledge 2018)17–29.
- 36.
‘The CCPCC Decision on Several Important Issues Concerning Comprehensively Deepening the Reform, The Third Plenary Meeting of the 18th CCPCC’ http://www.chinanews.com/gn/2013/11-15/5509681.shtml accessed 17 December 2020.
- 37.
Minzner shared with this estimate: ‘recent personnel appointments at the Supreme People’s Court have left no doubt that liberal-leaning legal technocrats have been given significant sway in that institution’: Carl Minzner, ‘Legal Reform in the Xi Jinping Era’, (2015) 20 Asia Pol. 4.
- 38.
Donald C Clarke, ‘China’s Legal System and the Fourth Plenum’, (2015) 20 Asia Pol’y 10.
- 39.
Song Gongde, ‘All-round Advancement of Building a System of the Party Legislations and Institutions’, People’s Daily (27 September 2018).
- 40.
See The CCPCC Ministry of Organization, ‘The Notice of the Opinion on Implementing the Institution for Examining Cadres’, 21 November 1979 https://www.lawxp.com/statute/s579449.html accessed 17 December 2020.
- 41.
In 1988, the CCPCC Ministry of Organization issued the Scheme for Examining the Annual Work of the Leading Cadres in the Working Departments of Local Government (Trial), which elaborated these standards in great detail: see https://www.lawxp.com/statute/s579449.html accessed 17 December 2020.
- 42.
Zhou Yongkun, ‘On Reforming the Politics and Legal Committee of Party Committee’, (2012) 5 Legal Science Monthly3-13.
- 43.
‘The Central Committee of the Communist Party of China issued the “Regulations on Political and Legal Work of the Communist Party of China”’, Xinhua News Agency (Beijing, 18 January 2019) http://www.gov.cn/zhengce/2019-01/18/content_5359135.htm accessed 17 December 2020.
- 44.
In his speech on the National Security Commission on 17 April 2018, Xi advocated the ‘totality of national security’, emphasizing the foundational importance of ‘political security’: see ‘Xi Jinping: Fully implement the overall national security concept and create a new situation in national security work in a new era’, Xinhua News Agency (Beijing, 17 April 2018) http://www.xinhuanet.com/politics/leaders/2018-04/17/c_1122697734.htm accessed 17 December 2020.
- 45.
The CCP Regulation of Inspection Work, Art 5 available at http://www.china-cic.cn/detail/19/25/1409/ accessed 17 December 2020.
- 46.
Stanley Lubman, Bird In A Cage: Legal Reform In China After Mao (SUP 2000); Pitman B Potter, ‘Review Essay: Legal Reform in China: Institutions, Culture, and Selective Adaptation’, (2004) 29 Law & Soc. Inquiry 465.
- 47.
Alexander Hamilton, James Madison & John Jay, The Federalist Papers, No. 51 (Clinton Rossiter ed, 1961), 320–324.
- 48.
Randall Peerenboom, China’s Long March Toward Rule Of Law (CUP 2002); Fu Yulin and Randall Peerenboom, ‘A New Analytic Framework for Understanding and Promoting Judicial Independence in China’ in Randall Peerenboom ed, Judicial Independence In China (CUP 2010), 95.
- 49.
Mary E Gallagher, Authoritarian Legality In China (CUP 2017); Yan Lin & Tom Ginsburg, ‘Constitutional Interpretation in Law-Making: China's Invisible Constitutional Enforcement Mechanism’, (2015) 63 AM. J. COMP. L. 467; Taisu Zhang & Tom Ginsburg, ‘Legality in Contemporary Chinese Politics’, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3250948 accessed 20 December 2020.
- 50.
Tom Ginsburg & Tamir Moustafa (eds), Rule By Law: The Politics Of Courts In Authoritarian Regimes (CUP 2008); Tom Ginsburg & Alberto Simpser (eds), Constitutions In Authoritarian Regimes (CUP 2014); Mark Tushnet, ‘Authoritarian Constitutionalism’, (2015) 100 Cornell L. Rev. 391.
- 51.
Randall Peerenboom (n 48).
- 52.
Ning Jie, ‘From Rule by Knife to Rule by Water’, People’s Court Daily (15 October 2007).
- 53.
In this article, ‘rule of law’, ‘rule by law’ and ‘legality’ will be used interchangeably unless otherwise specified or plainly suggested by the context.
- 54.
‘Reply Regarding Whether One Who Violated the Constitutionally Protected Basic Right to Education of the Citizen Should Bear Civil Obligation’, Judicial Interpretation [2001] No. 25.
- 55.
H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections On An African Political Paradox (American Council of Learned Societies 1988).
- 56.
China’s Labor Contract Law (2008) is an example of such laws, designed to improve the welfare of millions of workers. See Gallagher (n 49).
- 57.
Virtually all socialist constitutions fell into this category, see Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’, (1962) 56 Am. Polit. Sci. Rev.853.
- 58.
Conscientious legislators may well be motivated to enact good laws. Xin Chunying, Deputy Director of the Legal Works Committee (fagongwei) of the NPCSC at the time, might have played a key role in promoting the Labor Contract Law. See Wang Jing, ‘Xin Chunying Interprets the Labor Contract Law’, Legal Daily (8 December 2007).
- 59.
cf Melanie Manion, ‘“Good Types” in Authoritarian Elections: The Selectoral Connection in Chinese Local Congresses’, (2014) Comparative Political Studies; cf Melanie Manion, ‘Authoritarian Parochialism: Local Congressional Representation in China’, (2014) 218 China Q. 311–318. The author observed that, although LPCs do not allow public participation, they do serve as pork-delivering device for local citizens.
- 60.
See, e.g. Murray Scot Tanner & Eric Green, ‘Principals and Secret Agents: Central Versus Local Control Over Policing and Obstacles to “Rule of Law” in China’, (2007) 191 China Q. 644.
- 61.
Fu Hualing, ‘Building Judicial Integrity in China’, (2016) 39 Hastings Int'l & Comp. L. Rev. 167. For another view of dualism, arguing that the CCP serves the dualist role of law violator and the guarantor of court judgment enforcement, see Ling Li, ‘The Chinese Communist Party and People’s Courts: Judicial Dependence in China’, (2016) 64 Am. J. Comp. L. 37.
- 62.
Albert H.Y. Chen, ‘China’s Long March Towards Rule of Law or Turn Against Law?’, (2016) 4 Chinese J. Comp. L. 1, 30.
- 63.
ibid 24–26.
- 64.
Randall Peerenboom, ‘Fly High the Banner of Socialist Rule of Law with Chinese Characteristics! What Does the 4th Plenum Decision Mean for Legal Reforms in China?’, (2015) 7 Hague J. Rule Of Law 49.
- 65.
See Taisu Zhang and Tom Ginsburg, ‘China's Turn Toward Law’, (2019) 59 Virginia Journal of International Law322–325. ‘We use ‘legality’ in the most conventional sense of the word: ‘attachment to or observance of law.’ ibid at 316. Although this latter publication somewhat moderates the claims made in Zhang & Ginsburg (n 49), their arguments remain essentially the same.
- 66.
Zhang & Ginsburg(n 65) at 311.
- 67.
Zhang & Ginsburg (n 49) at 3.
- 68.
ibid at 5.
- 69.
ibid at 8.
- 70.
ibid.
- 71.
ibid at 24.
- 72.
ibid.
- 73.
Fu Hualing, ‘Wielding the Sword: President Xi’s New Anti-Corruption Campaign’ in Susan Rose-Ackerman and Paul Lagunes (eds), Greed, Corruption, and the Modern State (Edward Elgar Publishing 2015) 134. Fu Hualing, ‘China’s Striking Anticorruption Adventure: A Political Journey towards the Rule of Law’, in Weitseng Chen (ed), The Beijing Consensus? How China Has Changed Western Idea Of Law And Economic Development (CUP 2016). Fu pointed out that China’s anticorruption is characterized by the dual system of disciplinary and legal, with the former dominating over the latter. Many investigated officials revealed torture of different forms during the ‘double designation’ (shuanggui) process, usually taking place in closed rooms and isolated buildings. Some even committed suicide or, perhaps, were deliberately killed. See, e.g. the mysterious death of Xu Ming, who served as witness on the trial of Bo Xilai, see Cui Xiankang, ‘The Major Briber of Bo Xilai Case Died of Disease in Prison’, CAIXIN (6 December 2015) http://china.caixin.com/2015-12-06/100882462.html accessed 17 December 2020.
- 74.
Xi Jinping, ‘Speech on the General Conference in the Capital Commemorating the 30th Anniversary of the Promulgation and Implementation of the Current Constitution’, Xinhua News (4 December 2012) http://www.xinhuanet.com/politics/2012-12/04/c_113907206.htm accessed 17 December 2020.
- 75.
For the crackdown on the student supporters of the arrested union workers in Shenzhen, see Weiquan in ‘Shenzhen Jiashi: The Process that the Supporters Were Taken Away by Police’, BBC News (29 August 2018) https://www.bbc.com/zhongwen/simp/chinese-news-45341005 accessed 17 December 2020.
- 76.
The Central Office of the CCP and the State Council, Provisions on Recording, Circulating and Investigating the Leading Cadres’ Interference of Judicial Activities and Intervention of the Handling of Specific Cases, Art 5.
- 77.
Xu Hao, ‘Dossier for the Hundred-Billion Mineral Right Case Mysteriously Missing: Rent Seeking Behind Fight for Dirty Money’, China Economy Weekly (30 December 2018) http://news.sina.com.cn/c/zj/2018-12-30/doc-ihqfskcn2602611.shtml; Investigation Team Headed by Central politics and Law Committee Published Investigation Result of Dossier Loss in the Cageley Case, 22 February 2019.
- 78.
The two separate dossier system was established by the SPC regulation enacted in 1984, the Method of Archiving the Document Rolls of People’s Court Litigations. See Liu Renwen and Chen Yanru, ‘The Court Subsidiary Dossier System Shall Not Be Kept’, Southern Weekend (19 May 2016).
- 79.
Michael Forsythe, ‘China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince’, NY Times (18 January 2017) https://www.nytimes.com/2017/01/18/world/asia/china-chief-justice-courts-zhou-qiang.html accessed 17 December 2020.
- 80.
Zhang & Ginsburg (n 49) 62.
- 81.
The Central Disciplinary Committee and the National Supervisory Commission now share the same office building and a formal administrative partnership, and issue all decisions under both names. From its official website, it is clear that the Party entity is perfectly merged with the state entities: see http://www.ccdi.gov.cn/xxgk/ accessed 17 December 2020.
- 82.
The CCPCC and the State Council, Opinion Regarding the Establishment and Perfection of the Mechanism for Simultaneously Developing (ronghe fazhan) Cities and Countryside, 5 May 2019.
- 83.
CCPCC, Plan for Deepening the Party and State Institutional Reform, Art 1.20, available at http://www.xinhuanet.com/politics/2018-03/21/c_1122570517.htm accessed 17 December 2020.
- 84.
Wang Yao and A Tang, ‘The Mainland Press Industry under the Reduction of Publication Number: From Self-Censorship to Closely Following the “Party Guidelines”’, Initium Media(30 May 2019) https://theinitium.com/article/20190503-mainland-publication-number-controlling/ accessed 17 December 2020.
- 85.
Zhang & Ginsburg (n 49) at43, n245.
- 86.
See Zhang (n 11) at 952–953. Minzner expressed the same point that, ‘in a broader political environment where party officials remain hostile to concepts such as an autonomous bar, independent judiciary, and external checks on party power, the components of rule-of-law reforms that are most likely to be enacted successfully are the ones that most closely resemble existing party practices.’ Carl Minzner, ‘Legal Reform in the Xi Jinping Era’, (2015) 20 Asia Pol. 4, at 8–9.
- 87.
See, e.g. Han Dayuan, ‘The Supervisory System Reform Should Return to the Constitutional Orbit’, 14 November 2017 http://zhanlve.org/?p=3246 accessed 17 December 2020.
- 88.
See, e.g. Bill Birtles, ‘China carrying out political purge in Hong Kong’, ABC News (11 August 2020) https://www.abc.net.au/news/2020-08-11/agnes-chow-arrested-hong-kong-china-security-laws/12544476 accessed 20 December 2020.
- 89.
‘Behind the Case Fighting for Hundred-Billion Mineral Rights in Shanxi: Several Officials Were Punished’, Huaxia Times (28 January 2018) http://www.sohu.com/a/219652611_367891 accessed 17 December 2020.
- 90.
Gallagher (n 49) at 92–93.
- 91.
ibid at 65.
- 92.
Li Jianfei and Jin Youcheng, ‘The Rapid Increase in the Number of Labor Cases and Decrease in the Cost of Labor Weiquan after Implementation of Labor Contract Law’, Peasant Worker’s Public Opinion Network (13 August 2013) http://nmgyq.org/index.php?c=show&id=3088 accessed 20 December 2020.
- 93.
Interview with Professor Wang Jiangsong, 16 May 2019.
- 94.
Qianfan Zhang, ‘How to Protect Labor Rights? Insight from Dialogue between Labor and Capital in Shenzhen’, China Economic Times (22 August 2008).
- 95.
The strikes skyrocketed in 2016, with the average of 242 per month and a total of 1,454 in first half of the year. Massive labor incident involving over 1,000 workers rose to 52 in the first nine months of 2014. Cited in Gallagher (n 49) at 180–181.
- 96.
While the Japanese distinguish ‘good’ reform (kairyo) versus ‘bad’ (kaiaku), the Chinese does not have ‘bad reform’ (gai’er) in its vocabulary, implying that ‘reform’ is meant to be good only.
- 97.
See, e.g. Jonathan D Spence, The Search For Modern China (W W Norton & Company1990), 230–243.
- 98.
Robert Barros, Constitutionalism And Dictatorship (CUP 2002).
- 99.
Koji Yamamoto, ‘The Story Of The Supreme Court: Fifty Years Of Japanese Judiciary’, Sun Zhankun and Qi Zheng trans. (Peking University Press 2005), 62–68;Wei Xiaoyang, Institutional Breakthrough And Cultural Transformation: A Century Of Japanese Constitutionalism (Peking University Press 2006).
- 100.
Lifang, ‘Xi Asks Officials to Remain Loyal to Party “at Any Time, and Under Any Circumstance”’, Xinhua (Beijing, 11 January 2018) http://www.xinhuanet.com/english/2018-01/11/c_136888644.htm accessed 17 December 2020. In a speech in 2016, Xi Jinping required the party members to pay ‘absolute loyalty to the Party’, where ‘absolute means sole, thorough, unconditional, unadulterated, and full’: Li Wen, ‘The Absolute Loyalty to the Party Is a Basic Political Requirement’, People’s Daily (15 February 2016).
- 101.
See Wu Guoguang, ‘On the Reform and “Second Reform”’, (2004) 3 Twenty-first Century11, for categorizing the post-1992 era as ‘second reform’.
- 102.
Zhang & Ginsburg (n 49) at 64.
- 103.
ibid at 34.
- 104.
ibid at 24. The authors cited Hu Shuli, a liberal CEO who published an editorial on Caixin, a media of her own creation, to support Xi’s speech on the 30th anniversary of the constitutional promulgation: ‘For China to Rise, So Must Status of Its Constitution’, Caixin (12 December 2012). But Caixin is far from an orthodox party media, and Hu’s editorial had nothing to do with the later event.
- 105.
See, e.g. Zheng Zhixue, ‘Recognizing the Essence of “Constitutionalism”’, Party Building (30 May 2013) http://theory.people.com.cn/n/2013/0529/c83855-21652535-3.html accessed 17 December 2020.
- 106.
Thomas E Kellogg, ‘Arguing Chinese Constitutionalism: The 2013 Constitutional Debate and the “Urgency” of Political Reform’, (2015) 11 U. Pa. Asian L. Rev. 337. See also Rogier Creemers, ‘China’s Constitutionalism Debate: Content, Context And Implications’, (2015) 74 China J. 91.
- 107.
Yang Xiaoqing, ‘A Comparative Study of Constitutionalism and People’s Democratic System’, (2013) 10 Red Flag Manuscript 3.
- 108.
The seven taboos were made known to the public in early May 2013 by the weibo of Zhang Xuezhong, a law faculty at the East China Politics and Law University, who was soon removed of his teaching post. Independent correspondent Gao Yu, who harshly criticized Xi for suppressing freedom of speech, was convicted on the alleged crime of ‘leaking state secret’ to foreign media. ‘Veteran Chinese Journalist Gao Yu Jailed for Seven Years for Leaking State Secrets’, South China Morning Post (15 April 2015) https://www.scmp.com/news/china/society/article/1768290/veteran-chinese-journalist-gao-yu-jailed-seven-years-revealing accessed 17 December 2020.
- 109.
Zhang& Ginsburg (n 49) at 45.
- 110.
Bulletin of the Second Plenary Meeting of the 19th CCPCC,19 February 2018. It is also noticeable that the Second and Third Plenary Meetings were separated by barely over a month, which was unusually close compared to same meetings for previous sessions, suggesting the Party’s procedural irregularity caused by the constitutional amendment. For example, the Second and Third Plenary Meetings of the Eighteenth CCPCC, also under Xi, were separated by well over eight months.
- 111.
The CCPCC Recommendation on Revising Part of the Content of the Constitution, 25 February 2019.
- 112.
Lin Heli, self-labeled as a lefist scholar, for example, described the elimination of term limit as ‘moral coup d’état’. Mai Yanting, ‘CCP Four-Month Discussion Eliminated Term Limit of State President Implemented for 36 Years’, RFI (3 June 2018) http://cn.rfi.fr/中国/20180306-中共4个月讨论即取消实行36年的国家主席任期限制 accessed 17 December 2020.
- 113.
Xi Jinping, ‘Speech on Symposium of Literary Work’, Xinhua(14 October 2015) http://www.xinhuanet.com/politics/2015-10/14/c_1116825558.htm accessed 17 December 2020.
- 114.
For a statistical analysis of China’s sophisticated scheme of social media control, see Gary King, Jennifer Pan, and Margaret E Roberts, ‘How the Chinese Government Fabricates Social Media Posts for Strategic Distraction, not Engaged Argument’, (2017) 111 Am. Polit. Sci. Rev. 484–501.
- 115.
Celia Hatton, ‘Panama Papers: How China’s Wealth is Sneaked Abroad’, BBC News (6 April 2016) https://www.bbc.co.uk/news/world-asia-china-35957228 accessed 17 December 2020.
- 116.
For a minor example—minor compared to the later calamities, the Chinese participation in the Korean War was essentially decided by Mao alone, against the opinions of virtually all other CCP leaders at the time. The War led to the death of at least half million Chinese soldiers, a total destruction of the Sino-U.S. relationship, and one of the most brutal regimes in the world, which has succeeded three generations by the same family and lasted to this day. See Shen Zhihua, Mao Zedong, Stalin and the Korean War (3rd edn, Guangdong renmin chubanshe 2013).
- 117.
For an example of a corrupt high-level inspector of the Central Disciplinary Committee, see http://www.xinhuanet.com/legal/2019-05/27/c_1124548209.htm accessed 17 December 2020.
- 118.
Nationwide, the supervision commission has to be a giant institution since the National Supervision Commission reported that, in 2018, it received 3.44 million petitions and dealt with 1.67 million problems, filed 638,000 cases, and punished 621,000 cadres: see http://www.ccdi.gov.cn/toutiao/201901/t20190108_186570.html accessed17 December 2020.
- 119.
A local supervisory commission is supervised by the LPC and its standing committee at the same level, see Supervision Law, Art 53.
- 120.
Omnipotent as he seemed, for example, Mao Zedong twice inspected Zhengzhou, the capital of Henan province, in 1959–60, during which he was led by the provincial leaders to see harvest in the field, without any knowledge that as many as a million peasants were starving to die in Xinyang, a plentiful prefecture barely 300 km away. See Zhang Shufan, ‘The Xinyang Event: A Tragic Historical Lesson’, (1999) 12 Bainianchao 39, 39–44.
- 121.
The SPC Provisions on Several Issues Concerning the Registration of Cases at the People's Courts, SPC Interpretation (2015) 8 https://www.chinacourt.org/law/detail/2015/04/id/148127.shtml accessed 17 December 2020.
- 122.
For the increase of administrative law cases due to the case filing reform, see He Haibo, ‘The Effectiveness in the Implementation of the New Administrative Litigation Law from the Perspective of National Data’, (2016) 3 China Law Review.
- 123.
Art 15, Several Opinions on Further Protecting and Regulating the Parties’ Exercise of Right to Administrative Litigation According to Law, SPC Release (2017) 25, http://www.court.gov.cn/fabu-xiangqing-59772.html accessed 17 December 2020.
- 124.
PRC Constitution, Art 36. The so-called unregistered churches in China amount to tens of millions of Christians, who have experienced various forms of repression and hardship in the recent years.
- 125.
Interview with Prof. Wang Jiangsong on 16 May 2019.
- 126.
Gallagher (n 49)at 38.
- 127.
Zhang& Ginsburg (n 49) at 62.
- 128.
ibid at 64.
- 129.
ibid at 20.
- 130.
Wang Yiqing, ‘From Archive Portfolio to Social Credit Score: Is China Marching Toward the Orwellian Society? ‘BBC News (17 October 2018) https://www.bbc.com/zhongwen/simp/chinese-news-45886126 accessed 17 December 2020.
- 131.
There must have been disputes since the system has stopped as many as 23 million ‘discredited’ travellers from buying train or plane tickets: Lily Kuo, ‘China bans 23m from buying travel tickets as part of ‘social credit’ system’, The Guardian (1 March 2019) https://www.theguardian.com/world/2019/mar/01/china-bans-23m-discredited-citizens-from-buying-travel-tickets-social-credit-system accessed 17 December 2020. To my knowledge, however, the court has not accepted any of these cases.
- 132.
Zhonggengzu was commonly observed during the reforms in the 1980s as well as in the 2010s. See Qianfan Zhang, ‘Reflections on the Twenty Years Memorial of the Southern Tour’, (2012) 2 Leaders 80–89; Wang Jin et al., ‘Administrative Simplification and Devolution Confront Middle-Level Obstruction’, Economic Reference Daily (4 March 2015) http://dz.jjckb.cn/www/pages/webpage2009/html/2015-03/04/content_2662.htm accessed 17 December 2020.
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Zhang, Q. (2021). Does Authoritarian Legality Work for China?. In: John, M., Devaiah, V.H., Baruah, P., Tundawala, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2019. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-2175-8_9
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