China's Communist Party Plenum Focuses On Rule Of Law, But Not As The West Sees It

BEIJING -- The story would sound familiar to many mainland Chinese: An employee of a state-owned company goes on a mission to move his embezzled fortunes, and himself, to the United States. Revenge, greed, lust and even murder follow. It’s a story that sounds plausible in Chinese politics, and the sort President Xi Jinping’s "fighting tigers" anti-corruption campaign seeks to eradicate.

But this is not a news article: It’s the plot of "Black Holes," a novel by He Jiahong, a law professor at Beijing’s prestigious People’s University.

Just translated into English, the book isn’t just a work of fiction denouncing what happens when a one-party, undemocratic system rules an increasingly wealthy society. It’s the work of a scholar who has long been proposing China should fight corruption not just by shaming and punishing crooked officials, but by adopting something the West has had for centuries: a system based on the rule of law.

The book is nothing if not timely. Chinese Communist Party leaders Monday begin a key four-day meeting in Beijing, the fourth plenary session of the Party's central committee. The gathering of national representatives in the party's five-year cycle between congresses will focus jointly on corruption and the rule of law. The leaders will work to "establish ... a system of strict rule of law and supervision," the official Xinhua news agency said.

That dovetails with the president's drive against corruption. Since coming to power in March 2013, the Xi administration has devoted much of its energy to an internal purge of corrupt officials in the Party. The sweep has included such high-profile cases as Politburo member Zhou Yongkang, who has strong links with former Premier Jiang Zemin and Xu Caihou, former vice chairman of the Central Military Commission. The purge has extended beyond the confines of the party to powerful state-owned companies, to extract the poison from the intricate networks of power that have developed in the post-Deng Xiaoping era.

China’s Central Academy of Social Sciences recently revealed 74,338 officials have been disciplined for corruption since December 2012. But the purge, He said, is not the solution. Well acquainted with China’s judiciary as former deputy director general of the Department of Dereliction of Duty of the Supreme People’s Procuratorate, China’s highest court, He says the current purge has no clear policy and offers no sustainable solutions. In fact, it offers little other than an atmosphere of fear, which has had impacts ranging from a slump in the Chinese luxury goods market to a spike in the suicide rate of party officials.

Lu Boping, the embezzling protagonist of "Black Holes," is presented for much of the novel as a loyal friend and good citizen. “Somehow, however, society changes him,” He said. “Corrupt officials are not all evil. What we are facing is institutionalized corruption, within which people become corrupt.” And to prevent that, a shift from persecution to prevention is long overdue, he said -- but that cannot happen without establishing first an effective rule of law.

The leadership is increasingly aware of the limitations of the scare tactic of naming, shaming and imprisoning. Meanwhile, state media are increasingly linking corruption and the rule of law as two terms part of one and the same campaign.

But to Xi Jinping and the ruling Communist Party, however, the “rule of law” does not mean what it means to the West. China has its own history of legal thought and practice stretching back thousands of years. Xi, who is fond of quoting the ancient Chinese classics, has made numerous references to China’s native philosophy of Legalism, more than 2,000 years old, which advocates a strong ruler wield legal powers to maintain social harmony. In other words, in the ancient Chinese tradition with which Xi is well acquainted, the rule of law is not a legal code to which all are answerable. Rather, it is a tool through which the ruler should exercise power and preserve national stability.

The ongoing anti-corruption campaign is run by the Central Commission for Discipline Inspection, a secretive and powerful department of the CCP that works within party regulations, but outside Chinese law. But He suggests the responsibility of judging and punishing corrupt officials should be held solely by the existing People’s Procuratorate. In other words, powers against corruption should be wielded by the judiciary, separate from the law-making party.

This would mean the party divesting itself of enormous power and establishing a (semi-) independent check on its power, something akin to a Western-style supreme court. If the Xi administration is serious about containing and preventing corruption, however, this would be an important, even necessary step, He said.

He said he is convinced this is the direction in which the party should and will move. As a first step toward establishing a clean slate, he has suggested something far more radical. Since 2008 he has proposed officials above the level of local party chief be required to declare publicly their families’ assets, in return for an amnesty on whatever illegalities this may expose.

In fact, something similar to his suggestion was placed on the legislative schedule of the People’s Congress in 1994. Opposition from within the party, however, morphed the proposed regulation into a declaration of annual wages for internal party use only. Under this party rule, enforced since 1995, officials have been required to submit evidence of their annual wages to the Internal Division of Personnel and Organization every January. It has been easy, however, for officials to manipulate evidence of their income. Moreover, keeping the potentially incriminating evidence within the hands of a few select party officials has done nothing to expose and stem corruption.

“Rather than stay locked away somewhere, such information must be disclosed,” for scholars, other wings of government and the people to judge, He said. Through this, coupled with a strengthened and more independent judiciary, he insists, the party could “relieve itself of the heavy burden of corruption and start a new era of clean governance.”

He’s proposal for a corruption amnesty was met with strong backlash when first published in 2008, with some readers claiming anything less than execution was too lenient a punishment. Among the responses, however, there were also some sympathetic voices from members of government.

He continues to promote amnesty. This fall he will publish a series of articles across the Chinese academic legal press detailing possible ways of implementing the policy. But that’s unlikely to happen soon. A sudden switch from naming, shaming and purging to a more Western-style system of justice would not be in keeping with Xi’s uncompromising, tough-leader image. With legal reform and the rule of law increasingly talked about in the state-run media, however, steps toward a different system may influence policymaking in coming years.

“China will have to rely on law, rather than just on the rule of men. I think more and more leaders are understanding that,” He said. For him, though, the most crucial question is “how far and how fast” this drive to establish the rule of law will be pushed. This month’s Fourth Plenum may well provide the answer.