Political Order and Political Decay (59 page)

On the other hand, the Four Fundamental Principles with which the constitution begins enshrine the domination of the political system by the Communist Party, which in practice exercises strict control over the government and legislature. No one has authority to modify the constitution other than the party, and all existing constitutional documents were rubber-stamped by NPCs with little discussion. Prior to the 2004 constitutional revisions, it appeared that the party was permitting some open discussion of them by academics and other commentators, but these were quickly shut down and the final changes were essentially dictated to the NPC for ratification. The party clearly operates above and not under the law. As in dynastic China, law remains an instrument of rule, and not an intrinsic source of legitimacy.
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THE SPREAD OF RULES

China since the beginning of the reforms in 1978 has seen a large and gradual increase both in formal laws and informal rules that define and therefore constrain the behavior of lower levels of the government. It is not just the number of formal laws passed but the degree to which decision making is actually rule based that is the measure of an emerging rule by law there. The spread of rule-based decision making, as well as its limitations, can be seen in two areas: property rights and the regulations governing promotion and succession at the top levels of the Communist Party.

When the Deng-era reforms began, China faced a huge legal vacuum, especially in the area of private or civil law. The desire to encourage economic growth and a market economy has led to a rapid proliferation of new laws regarding contracts, joint ventures, land use, insurance, arbitration, and the like. The sources of law in the contemporary PRC are very eclectic, however, and were adopted piecemeal according to discrete requirements rather than implemented as a system, as in the Japanese adoption of the German code in the 1890s. Criminal law, for example, is still largely based on imported Soviet law from the early days of the PRC. In 1986, the NPC adopted the General Principles of Civil Law (GPCL) that was explicitly said to be derived from German civil law. In fact, the derivation came via the Japanese adaptation of the German code and the latter's adoption by the KMT government in the 1930s. Despite the formal cancellation of the KMT codes in 1949, Jianfu Chen notes that “the KMT Civil Code … [has] been the very basis upon which civil law and civil law science have been developed in the PRC.”
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Among the things inherited from the continental civil law tradition by the Chinese is the right of private citizens to sue the government in administrative courts for illegal behavior. The NPC passed an Administrative Litigation Law in 1989 setting forth rules under which government decisions could be appealed or challenged. The party saw this as a useful way of disciplining lower levels of the government, and the number of such suits has risen steadily in the decades since adoption of the GPCL. There are, however, strict limits to the usefulness of such litigation. One study from the 1990s showed that the likelihood of a plaintiff winning a judgment against the government is only about 16 percent in the most progressive provinces. Moreover, it is only the government and not the party that can be sued in this fashion.
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The adoption of a civil code ultimately derived from Western sources under the GPCL laid the foundations for the equivalent of Western private law. It recognized a sphere of independent legal actors who could acquire property, enter into contracts, alienate property, and defend their rights before a court system. The reformers faced principled opposition from ideologues within the party who were opposed to ownership of property by anyone other than “the whole people” (that is, the state). They squared this circle by creating a set of usufructuary (usage) rights that could be bought, sold, mortgaged, or transferred, in which the state nonetheless retained formal ownership. Thus, in China's booming real estate market, no one technically “owns” an apartment or house. One owns the equivalent of a lease whose term extends up to seventy years, which is acquired in exchange for land-use fees.
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Laws regulating contracts similarly try to square individual rights with ultimate state power. They fall short of full freedom of contract because they retain provisions that allow the state to “manage” contracts or void them entirely under poorly defined force majeure conditions.
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The 1986 GPCL was never intended to be a comprehensive civil code but rather a statement of general principles that left it up to subsequent ad hoc legislation to fill in the gaps. In addition, the code was modified in certain ways to meet ideological or political criteria. For example, the German and KMT codes in defining legal personhood differentiated between “natural” and “juristic” persons; the GPCL in effect abolished natural personhood by replacing it with the concept of citizenship. This seemingly minor point is in fact important in distinguishing Chinese and Western legal concepts: the latter see natural persons as bearers of rights and duties independently of any action of the state, whereas in China citizenship is something conferred on individuals by the state.
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Contemporary Chinese law thus continues the traditional Qing practice of not recognizing a separate sphere of individual rights bearers, and of seeing property rights as something benevolently granted to individuals by the state.
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In practice, the state could at any moment legally take that property for its own purposes. The state has at times tried to promote a rule of law as a means of dampening discontent. This has led to the development of a greater consciousness about legal rights on the part of ordinary Chinese citizens, but also to dashed expectations and increased cynicism about the law given the highly inconsistent enforcement of rules.
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Thus while contemporary China is increasingly rule governed, it does not possess Western-style property rights and contract enforcement. Theoretically, the government has not conceded the principle of private ownership, nor has it created a legal system that takes on the fundamental duty to protect private property. Chinese law, courts, litigation, arbitration, and a host of legal or quasi-legal undertakings have mushroomed in the three decades since the beginning of the reform period. But the judiciary still does not have anything like the stature and independence that courts do in Europe, North America, and Japan. Western businesses operating in China face a complicated terrain. While there have been increasingly clear rules promulgated regarding foreign investment, for example, many foreigners find that their Chinese partners treat the contract less as an enforceable legal document than as a symbol of a personal relationship between them. Particularly when dealing with powerful and politically well-connected entities like state-owned enterprises, they have found that their rights are often not protected.
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The degree of protection of property rights or contract enforcement remains, in other words, a fundamentally political rather than a legal issue. The Chinese Communist Party has seen fit to protect most property rights because it recognizes that it has a self-interest in doing so. But the party faces no legal constraints other than its own internal political controls if it decides to violate property rights. Many peasants find their land coveted by municipal authorities and developers who want to turn it into commercial real estate, high-density housing, shopping centers, and the like, or else into public infrastructure like roads, dams, or government offices. There are large incentives for developers to work together with corrupt local officials to illegally take land away from peasants or urban homeowners, and such takings have been perhaps the largest single source of social discontent in contemporary China.
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Apart from property rights and contracts, a critical area in which rules have spread concerns term limits, retirement, and procedures for leadership recruitment and promotion. One of the biggest liabilities of authoritarian governments in other parts of the world is the unwillingness of leaders to step down after a decent interval, and the lack of an institutionalized system for deciding on succession.
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I have already noted the length of tenure of many presidents in sub-Saharan Africa, both authoritarian and democratic. One of the drivers of the Arab Spring was the fact that Tunisia's Zine al-Abidine Ben Ali, Egypt's Hosni Mubarak, and Libya's Muammar Qaddafi had clung to power for twenty-three, thirty, and forty-one years respectively. Had any of these leaders set up a regularized system for succession and then stepped down after a term of eight or ten years, he would have left a far more positive legacy for his country and might not have been swept away in a revolutionary upsurge.

One of the factors contributing to the stability and legitimacy of authoritarian rule in China is the fact that the CCP has put such rules in place. The Chinese constitution specifies that senior leaders will serve maximum terms of ten years, and since Deng Xiaoping's retirement there have already been two ten-year cycles of leadership replacement at the 16th and 18th Party Congresses in 2002 and 2012. There are other less formal rules as well, such as one specifying that no one can be a candidate for the Standing Committee of the Politburo of the Communist Party past the age of sixty-seven. Mandatory retirement rules have also been set more broadly for lower levels of the party. While the actual politics of leadership succession at the highest levels remain completely obscure, there is at least an institutionalized process for leadership turnover.
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These rules are the direct result of the experience of Mao's Great Leap Forward and Cultural Revolution. As in the Soviet Union under Stalin, it was the senior ranks of the party itself that suffered directly from the unchecked personal dictatorship of a charismatic leader. Many of the rules they subsequently put in place were therefore designed to prevent another such leader from emerging. One of the speculations concerning the sacking of Chongqing party leader Bo Xilai in 2012 was that he was building precisely such a charismatic political base, making use of both populist appeals and Maoist-era nostalgia in a bid to become a member of the Politburo's Standing Committee.

The Bo Xilai affair illustrates both the strengths and weaknesses of rule-based decision making in the contemporary Chinese system. On the one hand, there are both formal and informal rules regarding succession, promotion, and acceptable political behavior on the part of aspiring political leaders. On the other, these rules fall short of genuine constitutional limitations on political power. They reflect a consensus in favor of collective leadership that exists among the current elite of the Communist Party, and particularly those who were old enough to have experienced the Cultural Revolution. But the rules themselves can be modified by that same leadership at a moment's notice.

Among the liberal democracies of Latin America, there has been a flurry of attempts by democratically elected presidents to hang on beyond the term limits specified in their constitutions. Some, like Carlos Menem in Argentina and Rafael Correa in Ecuador, succeeded in amending their countries' constitutions. But because the rules are embedded in stronger rule of law systems, such efforts are both politically costly and not always certain of success. Menem, for example, tried but ultimately failed to add not just a second but a third term to his presidency. Álvaro Uribe in Colombia, having secured an amendment to grant a second term, was stopped from getting a third term by an independent Constitutional Court. For all of the new rules affecting leadership change in China, these sorts of formal checks on power have yet to be created.

Creation of a rule of law that would limit political authority in China is thus still very much a work in progress. The precedent for an expanding rule of law has been set, however, and greater adherence to China's own constitution is an obvious path for future reform.
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It is for this reason that attacks by China's current leader, Xi Jinping, on the principle of constitutionalism itself are highly regressive.

 

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THE REINVENTION OF THE CHINESE STATE

How China's chief historical legacy has been high-quality bureaucracy; the organization of the Chinese party-state; bureaucratic autonomy in China and how it is achieved; the “bad emperor” problem and why China ultimately needs democratic accountability

During the Former Han Dynasty a couple of centuries before the birth of Jesus Christ, a centralized government existed in China that had many of the characteristics that Max Weber associated with modern bureaucracy. The government had the capacity to perform cadastral surveys and register the country's large population. It created a centralized bureaucracy that was literate, well educated, and organized into a functional hierarchy. The beginnings of a civil service examination system were already in place that included a channel of upward social mobility for bright but poor young men. This bureaucracy could impose land taxes on its large peasant population and conscript them into military service. The Chinese state mandated uniform weights and measures to promote commerce. The bureaucracy also sought to be impersonal: for example, the central government rotated officials in and out of provinces to make sure they did not develop close family ties with the local population. The civilian government exerted careful control over the military, which was moved to the frontiers and played little role in court politics. The Chinese state had the resources and technical ability to engage in huge public works projects, like the building of the Great Wall and a canal system to promote commerce and divert water to arid regions. The state was strong enough to be highly tyrannical when it wanted, moving entire large populations and confiscating the property of its own elites.
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