Some discrepancy exists between the rules that are written and those that are enforced. This is true for most places in the world, and China is no exception. China has excellent copyright laws, for example, but counterfeit DVDs are for sale on most city blocks. The country also has an antitrust law. Citing this law, Chinese regulators sued Fiat (now Fiat Chrysler Automobiles), which boasts less than 1% of the country’s automobile market, but not China Mobile, which controls 67% of its mobile phone market.
This selective law enforcement gives much power to government offices and officials, at all levels. China's one-party system of government complicates the problem further. Most political figures, including judges, are operating within the same political structure. Rulings against well-connected people could damage a judge’s career prospects. This is not unique to China, but when local officials can literally hire and fire judges, the situation becomes especially problematic.
This is why Chinese President Xi Jinping excited many reformers in late 2012 when he called for full implementation of the country's constitution in a public address. From a legal perspective, China's constitution is weaker than its copyright laws. Courts can cite the copyright laws in their rulings but can’t cite the constitution. There are reasons for that. China's constitution promises freedom of speech, freedom of the press and freedom of assembly, among other things. In the past, the government has prioritized social stability over these rights. Xi's comments gave legal reformers hope.
That hope has faded over the past two years but has not totally disappeared. Xi and his administration have given mixed signals about reform. They have jailed prominent legal activists and tightened controls on social media, while at the same time closing down the country's reeducation-through-labor camps, loosening the one-child policy and reforming the controversial residential registration system. Xi has quietened his talk of the constitution but emphasized more strongly the concept of rule of law.
This concept - the law applies equally to all people and institutions - has been central to his administration's ambitious campaign against corruption, under which the Communist Party has disciplined more than 200,000 officials. In July, the government officially placed ex-security chief Zhou Yongkang under investigation for "serious violations of discipline." Zhou formerly served on the seven-member Politburo Standing Committee, the country's highest law-making body, so the action demonstrated that no political figure was above the law.
It also cleared a political opponent from Xi's path. China's Communist Party is a complex organization, with many factions vying for power- an internal struggle that rarely comes to light. Thus it is difficult to discern whether President Xi launched his anticorruption campaign to improve the operation of the government or to consolidate power. Probably some of both.
Whatever his motivation, the campaign has done more than just topple corrupt officials and reduce sales at producers of expensive liquors (see the chart here). It has brought legal reform to the forefront. According to domestic media reports, rule of law will top the agenda at the fourth plenum of the 18th Congress of the Communist Party (CCP), which takes place in Beijing on October 20-23.
At the annual meeting, Xi and other Communist Party members will put together a statement outlining a few policies and many priorities for the next year. Although there will probably not be any mention of legally enforcing the constitution, there may be progress on two less dramatic fronts–judicial independence and legal transparency. Following last year's meeting the government implemented limited trial runs for appointing and financing judges at the provincial rather than local levels. Lawmakers may extend this practice to other provinces, freeing judges to act as checks on the power of local authorities. China's legal system is opaque. Courtrooms are closed and records are rarely open to the public. This is beginning to change, with some courts answering calls from the public to post verdicts online. The trend, if it continues, will bring more accountability and consistency to the legal system.
Beyond these two areas, the meeting will set the tone for the next year and possibly beyond, signaling what types of reforms could be ahead. Legal reform is a slow process, especially in China. For that reason, it’s unlikely the statements produced at the plenum will be earthshaking. With rule of law in focus, however, we may see how committed Xi and his administration truly are to legal reform.
"Realizing the rule of law is a long-term task," says Jiang Ping, legal scholar and former president of the China University of Political Science and Law, in an excellent write-up for CaixinOnline. "We cannot expect solutions to come from a single meeting. But as the party's first meeting themed on the rule of law, I hope it can lead to further changes."