Concluding remarks
China is at a crossroads and, as far as legal reforms are concerned, is likely to regress from, rather than progress towards, establishing a genuine rule of law.
Deng Xiaoping’s political reforms were flawed and limited, but he did establish a constitutional foundation for a gradual separation of the Party from the State.
For practical purposes, he also forged a consensus in China that the Party would not directly exercise State powers. This consensus has now been breached, and a reform towards the separation of the Party from the State is now off-limits in the foreseeable future, and so is constitutionalism, however it might be understood.Even more alarmingly, some of the reforms implemented by Deng Xiaoping have now been reversed. The Party has now re-entered into the specific provisions of the Constitution19 and the abolished life tenure of the position of the President of the PRC has now been restored.20 In light of these developments, the future of Chinese legal reforms is, at best, uncertain and, at worst, law might once again be blatantly used for establishing a one-party dictatorship or, worse still, a personal dictatorship.
Notes
1 Delivering his Party Report at the 19th National Congress of the CPC on 18 October 2017, Xi Jinping declared that ‘Socialism with Chinese Characteristics has now entered into a New Era.’ He did not, however, explain what that ‘New Era’ means in theory or practice. As usual, this latter task is left for ‘scholars’ to explain, and so far we have seen the use of this term but not much explanation of its meaning. See People’s Daily (2018a).
2 Huge efforts have been made to promote Xi’s ‘governance model’ globally: In September 2014, Xi Jinping on Governance was published by the Propaganda Department of the CPC (in collaboration with Documentation Department of the CPC and the China Translation Bureau).
By January 2018, 6.6 million copies of this book had been distributed to more than 160 countries in 27 languages. In January 2018, this book was re-published as Volume One of Xi Jinping on Governance, after Volume Two of the book was published in November 2017 (Xinhua 2018a; People’s Daily 2017). According to official Chinese sources, the Second Volume had by early February 2018 distributed over 13 million copies in Chinese and English (Xinhua 2018b). Further, upon the conclusion of the 19th Party Congress in October 2017, China has, by February 2018, sent some 30 delegations to some 80 countries/regions to promote the understanding of the ‘spirit’ of the 19th Party Congress, that is, the developing path and governance model of the CPC (People’s Daily 2018b).3 That article (in fact a speech delivered in 1980) by Deng was widely seen as a programmatic document guiding the reform of the political system.
At the ∣6" Party Congress in 2002 the phrase ‘Ruling the Country According to Law' was also added to the CPC Constitution. On the adoption of ‘Ruling the Country According to Law' as a Party and state development policy, see Chen (2016a, 67-70). Under the 1975 and 1978 Constitutions, the armed forces were under the command of the Chairperson of the CPC (Article 15 of the 1975 Constitution and Article 19 of the 1978 Constitution).
For instance, in the case of the establishment of the Central Military Commission, Peng Zhen made it clear that the leadership of the Party over the army would not change as the affirmation of Party leadership in the Preamble would also include its leadership of the armed forces (Peng 1993, 20).
This point has been emphasised from time to time. For instance, the Political Report of the Party at the 14th Party Congress specifically stated that “the main method for the Party to exercise its political leadership over State affairs is to translate Party policies into State will through legal procedures” (Jiang 1992, 1-3).
The Leading Group was formally established on 30 December 2013 by the Politburo (Xinhua 2015c).
For a summary of decisions adopted at the 38 meetings of the Leading Group, see Xinhua (2018c). It should be pointed out that this Leading Group is an authority of the Central Committee of the CPC and, in typical Party fashion, their work is routinely treated as confidential, and documents adopted therein are generally not published other than through some brief media reports.
See Para. 6 (4) ofthe Party Report at the 19th National Congress of the CPC on 18 October 2017. So far, no less than 8 such Leading Groups have been established (with Xi as the Head of these groups), dealing with matters ranging from internet security to State economic and finance management, from military reforms to the relationship between the military and civilians (BBC 2017). Some of these groups, such as the Leading Group on Comprehensively Deepening Reform and the Leading Group on Comprehensively Ruling the Country according to Law have now been upgraded to being ‘commissions', suggesting the permanent establishment of such Party authorities. For details, see A Plan to Deepen Party and State Institutional Reforms, issued by the Central Committee of the CPC in March 2018.
This Commission is defined as a decision-making and coordination authority of the Central Committee of the Party, and is accountable to the Politburo and its Standing Committee (Xinhua 2014a).
For a comprehensive report on the establishment of the Supervision Commissions, see Xinhua (2017). This report defines the Supervision Commissions as ‘political authorities,' not administrative or judicial authorities.
The 1982 Constitution was amended for the fifth time on 11 March 2018. The original Article 1(2) stipulates that ‘Socialism is the fundamental system of the People's Republic of China.' Through the Amendment, it is now added that ‘The leadership of the Communist Party of China is the most fundamental feature of Socialism with Chinese characteristics.'
See the second-to-last paragraph in Section One of the 2014 Party Decision.
Such control is now so strict that the 2014 Party Decision requires that approved uniform textbooks must be prepared and used in law schools and for judicial examinations. See Para. 6 (3) of the 2014 Party Decision.
The Hong Kong magazine, Mingjing Yuekang (Mingjing News) was the first to publish the document in full ( accessed 2 September 2013). The Chinese document was then translated in full by China File (available at accessed 12 May 2014, and adopted above). When the document was initially leaked there were some doubts as to its authenticity. On 5 May 2014 a Chinese journalist, Ms Gao Yu, was charged with the criminal offence of leaking a Party confidential document to overseas organisations. Ironically, it is this criminal charge and its reported offence that confirms the authenticity and accuracy of the document (See People's Daily [2014b], South China Morning Post 2014; Sydney Morning Herald 2014).
17 A full Chinese text of the speech is available at http://chinadigitaltimes.net/ chinese/2013/³³/.
18 See Notice on Strengthening Social Stability and Politico-legal Work, issued by the Central Committee, quoted in Inside Story (2014). Describing the politico-legal institutions as swords of the Party is clearly in reference to treating the military as guns of the Party.
19 See supra note 13.
20 Article 79(3) of the 1982 Constitution stipulated that the President and Vice President of the PRC shall serve no more than two consecutive terms. This restriction was removed by the 2018 Constitutional Amendment, adopted on 11 March 2018.