China’s National People’s Congress, circa 2015.

Reminder: China Has No Rule of Law

Drake Long
Mar 14, 2018 · 7 min read

With a thwack of its rubber stamp, the National People’s Congress (NPC) of China has signed off on a constitutional change allowing Xi Jinping, and any other future President of China (if there even is one), to rule indefinitely. This came with zero surprise, given the NPC (and its counterpart meeting at the same time, the National Committee of the Chinese People’s Political Consultative Conference) has never refused legislation handed to it. It is not a parliament with any real control. The final vote tally was predetermined and reflected the NPC’s typical place under Xi Jinping’s thumb, even on a matter as controversial as extending the constitution’s term limits. The ‘Two Sessions,’ as this annual meeting is called, is a pageant. But don’t roll your eyes at it.

The deeper story here concerns the shock over the constitutional amendment in the first place. Shortly after its announcement, the NPC came together to approve it. The Two Sessions were replete with applause for such an amendment, referencing Xi by name so often it would make Chairman Mao jealous. This is despite the fact Chinese society is more divided over the prospect of a President-for-Life than the glowing CCTV coverage lets on.

Foreign analysts are similarly deep in consternation over what this amendment really means. Truthfully, it’s not a secret Xi planned on ruling past his term limit; we’ve known that at least since the 19th Party Congress, when no potential successor fitting the normal criteria was elevated to Xi’s Standing Committee. But even before the Congress , most analysts figured Xi’s cultivation of his image and aggressive crackdown on political opponents were signs he wasn’t going away anytime soon. Yet amidst the panic over the prospect of a new dictatorship under Xi Jinping, it seems to be forgotten that the presidency of China is not the most powerful position, historically. And the constitutional term limit had little impact in the first place.

One of the more confusing aspects of China’s government is its informal method of leadership. Previous leaders like Hu Jintao and Jiang Zemin were all given the honorific ‘paramount leader’ in the press to reflect the fact that they did not derive their power from being President, they instead had a form of de facto power based on their positions as the General-Secretary of the Communist Party and the Chairman of the Central Military Commission. The President runs China in theory. But the General-Secretary runs the Communist Party. Xi’s project this past term has been to merge these two entities until they’re indistinguishable, hence his reliance on Party working groups over private businessmen and solely-governmental employees. And this also explains his current designs on the presidency — he wants to centralize power under the President, yet not give it up. And so, the term limit is abolished.

The mere fact that he was able to achieve this as General-Secretary gets to the heart of China’s contradiction, then. Deng Xiaoping, the shrewd architect of China’s revival, never held the position of President. Towards the end of his rule and his ‘southern tour’, he never held any important title whatsoever beyond Chairman. Yet he was still understood to be paramount leader. Reaching back further, Mao Zedong was never President, either. Few would argue against him being in charge of China, though.

Compounding this is the unpleasant truth that there may be a term limit for a President, but there is nothing of the sort for a ‘paramount leader,’ who can jump from official title to official title if necessary (yet Xi doesn’t seem to think even that fig leaf is required of him). All of the expectations Xi Jinping has shattered — with the 19th Party Congress, his targeted anti-corruption campaign/purge on rivals, and the NPC — were only set up by Deng Xiaoping in 1989. The arbitrary age of 68 as the age of retirement for government officials, the courtesy of elevating one’s successor to the Standing Committee in their second term, and the understanding to empower a different regional ‘faction’ afterward, are all relatively new expectations for how the Communist Party governs China. And all of them were understood as informal rules. There is no legalistic underpinning to them.

In such a case, is it really shocking Xi Jinping is side-stepping what were in effect soft guidelines on his rule? If not him, then likely at some point another Chinese paramount leader would accrue enough power in the background to do the same. The core of China’s Communist Party is now Xi Jinping because the core of China’s governance itself always stood on shaky ground, with elite mandarins watching each other’s machinations but reluctant to put into force any legal guideline that might curb their own.

In so many words, China has no rule of law.

Corrupting Anti-Corruption

The amending of the constitution has to happen to give Xi Jinping a veneer of legal hegemony. But it doesn’t change the fundamental problem simmering in the modern Chinese republic for years. The government of China suffers from very little accountability, and everything is rolled out in a top-down manner. There are no hard constraints on the power of a paramount leader except factional politicking, and Xi Jinping has dealt with that informal restraint by launching a massive anti-corruption campaign — a campaign which just so happens to have snagged his biggest political rivals and scared the rest of the Communist Party (of which there are no clean hands) into silence. Wang Qishan, Xi’s partner in this purge, is also breaking precedent by informally staying on the Standing Committee past retirement, likely in a capacity as Vice President.

Those observing the anti-corruption campaign could liken it to whack-a-mole: there is little changing of bureaucratic rules, instead it is a targeted campaign against high-profile politicians. This illustrates the absurdity of it all. China’s corruption is systemic, owing to the lack of legal constraints and judicial independence in its government. Yet the anti-corruption drive does nothing to fix these problems. It is instead a tool to take down rivals, punishing them for taking advantage of a system that those with enough loyalty take advantage of as well and suffer less for it. Little real accountability will come from these anti-corruption efforts.

Foreign Governments Beware

Perhaps Xi’s enshrinement of himself is thus surprising to outsiders not because they counted him a reformer, but instead because it shows the real nature of the Chinese state — a Chinese state in which foreign governments are eager to trade and entangle themselves. Maybe in hindsight they ought to have applied more scrutiny to China’s inefficient traffic court than its markets. If Germany, for example, paid more attention to the ongoing failure of China’s law system to have anything resembling independence and predictability, then the punctuation of this constitutional amendment may not have looked so shocking. Instead, it’s something perfectly expected, as China’s legal system has stressed rule by law far more often than a traditional rule of law, the latter wherein elites might be accountable to something other than their own personal whims.

The warning signs were long in place, then, for China to emerge as an autocratic country, more unstable than Western nations first realized. The myth of Chinese stability was comforting to those trying to find an alternative to the tumultuous current state of the U.S., but it’s a myth nonetheless. Truthfully, at no point in modern history have advanced, democratic countries had to interact with a trading giant like China, which has propelled itself on economic growth despite not having anything similar to the government accountability and rule of law that various Western countries do. Now we are beginning to see the fruits of that relationship, which is an increasingly worrisome one. With little rule of law, foreign companies will see more of their partners unexpectedly gobbled up by Xi’s Communist Party. Foreign governments will have to contend with Chinese diplomats and bureaucrats unconcerned with the idea that they simply cannot yank a dissident into jail in broad daylight. And all of this is summarized by the sheer unpredictability characterized by China’s fraying of both its formal and informal boundaries.

This unpredictability is a problem given China’s explosive growth on the world stage. Comprising 15% of the world’s GDP, with its hooks in countries from Sri Lanka to Greece, China is a massive influencer. No small feat for a country with a line of succession that is largely ad-hoc. With all of this wealth, China is increasingly attractive as a place for investment and cooperation, yet the lack of legalism in its government is also equivalent to a ticking time bomb. Virtually everything from petty trade wars, to seizure of assets, to imprisoning foreigners are on the table when dealing with China, and as it continues to grow and become more obstinate the barriers preventing such combative behavior will erode.

So in debating the impact of this constitutional amendment, we should look at the rubber stamp Congress and not ask ‘why did the NPC do this?’, but instead ask ‘what is the point of the NPC?’. The answer goes a long way in warning about the prospect of a China interconnected with as many countries as it is in the world. While many of its trading partners proscribe to a legal tradition of accountability, China’s new leadership doesn’t seem to find those compatible with their direction for the country. In a way, doesn’t it explain China’s attitude towards certain international laws, as well?

Mob-Rule

Stunning, amateurish insights from cantankerous youngsters. Take the title in good humor; we’re a mob of politico-philosopher wannabes, but we’re no enemy of democracy. Follow along for the best ideas a rag-tag assembly can muster. Updates every Sunday!

Drake Long

Written by

Living in China, finding a lot to ramble about. Young, yet crotchety. Founder at medium.com/mobrule. Lukewarm takes on my Twitter: @DRM_Long

Mob-Rule

Mob-Rule

Stunning, amateurish insights from cantankerous youngsters. Take the title in good humor; we’re a mob of politico-philosopher wannabes, but we’re no enemy of democracy. Follow along for the best ideas a rag-tag assembly can muster. Updates every Sunday!

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