A. Introduction
Legislation is one of the most important action forms of the Chinese Communist Party (“CCP”) for ruling China. Under the political reality of the Party-state, the CCP simultaneously acts as a bureaucratic political organization and as a leading party monopolizing all the supreme powers of the state. Correspondingly, the legislation of the CCP is also dichotomous. It includes not only the state legislation under the CCP’s control, but also the internal legislation of the CCP. The co-existence of two normative systems is the counterpart of the dualistic Party-state political reality. The relationship between the two normative systems created by state-legislation and Party-legislation has varied in the different periods of CCP rule.
In a long term after the Reform and Opening policy in 1978, the CCP generally insisted on the separation of Party and state defined by Deng Xiaoping at the end of 1970s. The separation of Party and state means, in contrast to the high mixture of Party and state organizations and their functions in the Cultural Revolution era, the “retreat” of the Party from the most areas of the day-to-day state governance. The vacuum which was left by the retreat of the Party and its regulatory function and force was filled by state laws. As a result, it is a clearly observable phenomenon that the legal and political evolution in the Reform era was characterized by a large scale of state-legislation, or on a more abstract level, the rationalization and formalization of the state governance system, especially its legal system. However, it is also undeniable that the Party-legislation and the intra-party normative system existed parallel with the acceleration of the state-legislation even in the Reform era. The gain of autonomy as well as independence of the state legal system depends highly on the space granted by the CCP to the state. The will of the CCP to maintain the separation between the Party and the state guaranteed the nuanced balance between the intra-party normative system and the state normative system to a greater extent.
In the past decade, consistent with the tendency to strengthen its overall leadership, the CCP took a series of measures to enhance its internal legislation by enacting considerable intra-party regulations. Strengthening intra-party legislation also brought changes to the relationship of the intra-party normative system with the state normative system. Contrary to the “retreat” from the state, the CCP more and more intervenes into the state day-to-day operations under the policy of Party’s overall leadership. In this regard, the past decade witnessed the boom of Party-legislation.
Some sensitive Western observers of Chinese law very early caught this phenomenon of the Chinese legal evolution in recent years. They endeavored to grasp and analyze the “comeback” of the Party and the salience of the intra-party legislation in various paradigms, principally for example, “legal formalism/anti-formalism,”Footnote 1 “rationalist/irrationalist,”Footnote 2 “liberal-democracy/dictatorship-authoritarianism,”Footnote 3 “administrative power/political power,”Footnote 4 “rule-based processes /(law-transcending/ illiberal) political leadership,”Footnote 5 “the legal/the political,”Footnote 6 “professionalism/politicization,”Footnote 7 and so on. One even referred to the dichotomy of “normative state/prerogative state” theory which had been developed to describe Nazi Germany.Footnote 8 In sum, their worries concentrated on the possible negative impacts of strengthening intra-party legislation on the achievements of the legal reform in the Reform era and the “disorientation” of the Chinese legal development for the new era.Footnote 9 Concretely, they worry that under the tendency of Party-state-fusion, the intra-party legislation which involves not only pure Party matters, but also intervenes into state matters, undercuts the separation of Party and state, and as a result, the basis of the socialist rule of law und all the institutional achievements consisting of it.
Generally, to understand the boom of the intra-party normative system and its influences on the state law, one has to examine the very origin of the existing “socialist rule of law state.” The author argues that the socialist rule of law state, regardless of its intentional terminological imitation of its Western counterpart “rule of law,” did not bring any approach to or uptake of the substantive values of the Western rule of law, for example, “liberal democracy” and “separation of powers,” which are in direct contravention with the Party-state political reality. On the contrary, the greatest contribution of the socialist rule of law state is that it, constitutionally and legally, entrenched the autonomy and independence of the state governance system, especially its legal system and managed to consolidate the separation of the Party—normative system—and the state—normative system—from the state side. This means that all the day-to-day ruling—or more accurately “regulatory”—behaviors of the Party entails the justification and legalization from the state and its normative system, even if the Party itself dominates the state lawmaking. This kind of Party behavior form essentially distinguishes itself from the previous ways that the Party acted merely on the basis of its own internal polices, or even the orders of some individual Party-leaders like in the Cultural Revolution. The socialist rule of law state signifies the belief of the Party in and its commitment to the institutional rationality, it created and guaranteed the indispensable space for all institutional establishments and growths within the state, including but not limited to massive rationalized legislative projects, enhanced judicial professionalism and functional independence and legalized administration.
Some of the above-enumerated paradigms are indeed conducive to explain the dynamics of the Party-state relationship. For instance, the dichotomy of “legal formalism/anti-formalism” is suitable for analyzing the possible effects of the intra-party rules on the authority and stability of the formal state laws, because the normativity and binding force of the informal intra-party rules, often depicted as the antithesis of formal state laws, can compete with and infringe on the normativity of the formal state laws. Other paradigms, however, can only obtain a limited explanatory force, especially the dichotomy of “liberal-democracy/dictatorship-authoritarianism.” When the Western liberal democracy was not intended to be adopted into the core connotation of the socialist rule of law state at all, how can one require it to interpret the current Party-state relationship convincingly?
A more appropriate way to examine how the strengthened intra-party legislation can exert possible influences on the state normative system is to adopt an indigenous perspective, namely under the socialist rule of law state and the framework of the separation of the Party and state. To do this, this Article conducts a more sophisticated study on the intra-party legislation. It categorizes the CCP’s intra-party legislation and its intra-party norms into three kinds: The pure intra-party regulations, the state-parallel intra-party regulations and the supra-state intra-party regulations. On this basis, it further discusses the relationship of the different intra-party regulations with the state laws as well as, ultimately, the relationship of the Party with the state.
Structurally, Part B expounds upon the status and function of the CCP in the state legislation as well as in its own Party-legislation and points out that the CCP acts as a legislating party and the legislation is one of its most important action forms. In Part C, the author conducts a positivistic and typological investigation on the intra-party enactments. Under the paradigm of socialist rule of law state and the separation of Party and state, Part D studies the influences of each kind of intra-party rules on the state formal laws and responds to the existing explanatory frameworks posed by some Western Chinese law observers. Part E concludes this Article.
B. Legislation as Action Form of the CCP for Ruling the Party-State
In the PRC, it is the People’s Congresses on the national and local levels that function as the legislative organs. Different from Western competitive representative democracy where the legislature is designed to articulate and integrate the plural interests of the constituencies, the People’s Congresses have generally been deprecated as “rubber stamps” under the control of the CCP. The state legislature is deemed to be a tool for the Party to rule the state and is totally subject to the will of the Party. To a greater extent, under the Party-state political design—where there is no Party outside the state and no state outside the Party—it is safe and appropriate to argue that the state legislature possesses a strong instrumentalist nature due to its subordinate status to the Party. The dominant status of the Party which enables the Party to be a legislating Party in the Party-state can be demonstrated in two legislation areas, namely in the state legislation and in the legislation of the Party’s own.
I. The Party in the State Legislation
Under the mechanism of the Party-state, the state legislation is one of the most important areas over which the Party exerts its leadership. The supreme status of the Party guarantees its absolute control over the state legislatures through political, ideological and organizational means. However, it is also worth noting that, contrary to the total substitute of the Party organs for the state organs like in the Cultural Revolution, the leadership of the Party over the state legislatures premises the institutional independence of the state legislatures. Thus, the faces of the Party in the state legislation are twofold: On the one hand, the Party never abandons its control over the state legislatures and ensures that the state legislatures comply with its will anytime when needed; on the other hand, it highly depends on the institutional rationality of the state legislatures to convert its wills into rationalized and systemized legal clauses which are required for governing and regulating a modern society. The transformation and polishing within the state legislatures also endows the Party’s will with the indispensable legality through the routine legislative procedures.
Moreover, it bears noting that the Party’s will cannot be understood as a pure political will merely inundated of ideological instructions and disciplines. In fact, as the unique leading Party which is committed to achieving the modernization and rejuvenation of the Chinese nation, the CCP must face and handle the complexity of the day-to-day state governance in the enormous concrete social fields. A pure political understanding ignores the live life reality of the state and society. In this sense, notwithstanding its strict political control over the state legislatures, the Party has to endow the state legislatures with indispensable institutional vitality and space, so that the state legislatures can function as the part of the normal state organs for implementing and realizing the day-to-day state governance. This duality is key to understand the status of the Party in the state legislation. It obviously refutes the one-sided and oversimplified emphasis on the so-called arbitrary—illiberal and undemocratic—political leadership of the Party over the state legislatures as some of the afore-mentioned explanatory categories argued.
II. The Organizational Control of the Party Over the State Legislatures
Among all the control means, the organizational control undoubtedly is the most effective one for the Party to lead the legislatures on the national and local levels. To a greater extent, other “soft” control means like political and ideological means can only effectively be achieved by the “hard” organizational control, because the organizational control determines the material reward, punishment and promotion, career prospect and, most importantly, the political future of a party member. Through the control of personnel appointments, the Party ensures that the top leaders as well as the majority of the members of the legislatures are occupied by the Party members who, from their side, must abide by the orders, instructions, disciplines, policies and the whole ideology of the Party. Thus, when the Party exerts its organizational control over the Party members “inserted” in the state legislatures, it can also enforce its will in the state legislatures without any obstacles.
On the whole, the absolute majority of the state organs are occupied by the Party members. General data officially released in 2016 shows that “more than 80 percent of China’s civil servants are Party members, and more than 95 percent of the leading officials at or above the county level are Party members.”Footnote 10 Regarding the state legislatures on the national and local level, there are rare systematic official data about the percentage of their Party members.Footnote 11 However, some academic researches and media reports as well as some fragmental official data can provide a hint of this percentage. According to the statistics of Professor Qin Qianhong, “the proportion of CCP members in the National People’s Congress (“NPC”) is always an […] majority, with 54.49% in the first, 57.75% in the second, 54.83% in the third, 76.8% in the fourth, 72.78% in the fifth, 62.5% in the sixth, 66.9% in the seventh, 68.4% in the eighth and 71.5% in the ninth.”Footnote 12 For the thirteenth NPC, there is still no full view of the Party membership of the NPC deputies. According to the data of the newspaper “Wenhui Bao,” in the Shanghai Delegation of the thirteenth NPC, one of the 35 delegations of the NPC, the proportion of its Party members is 66.7%.Footnote 13 On the local level, there are some scattered available samples. A case of the Haiyan County of the Zhejiang Province shows that the proportion of the Party members in its People’s Congress reaches 73.2%.Footnote 14 In the case of the Fuzhou City of the Fujian Province, the proportion of the Party members in its People’s Congress is 60.9%.Footnote 15 An official Decision of the Foshan City of the Guangdong Province requires that the proportion of the Party members in its People’s Congress shall not surpass 65%.Footnote 16
The proportion of the Party members in the Council of Chairmen (weiyuanzhang huiyi, 委员长会议) of the Standing Committee of the NPC (“SCNPC”) can provide a more conducive perspective. The proportion of the Party members in the Council of Chairmen from the seventh to thirteenth NPC is respectively 55% in the seventh, 60% in the eighth, 60% in the nineth, 68.8% in the tenth, 64.3% in the eleventh, 64.3% in the twelfth, and 60% in the thirteenth.Footnote 17 Besides in the leadership of the SCNPC, the general proportion of the Party members in the total members of the NPC Special Committees is also dominant.
The Partisan structure of the NPC special committeesFootnote 18
From the above-given statistics, it is clear that the proportion of the Party members in the organs of the national and local legislatures varies between 55% and 80%. It never happens that this proportion falls below 50%, and in the most cases, it remains about 65%.Footnote 19 This proportion ensures that the will of the Party can be realized in the internal processes of the state legislatures and enhanced in the state laws.
Concretely, the organizational control of the Party is principally guaranteed in the form of the leading Party members group—dangzu, 党组, LPMG—and other party organizations established in the state legislatures. According to Regulation on Work of Leading Party Members Group of the Chinese Communist Party,Footnote 20 hereafter the LPMG Regulation, the LPMG is a leading body set up by the Party in the leadership of the central and local state organs, people’s organizations, economic and cultural institutions, as well as other non-Party organizations. As the power organs of the state, the legislatures on the national and local levels are naturally the crucial units where the LPMG must be established.Footnote 21 Besides the LPMG, there are also other forms of Party organizations existing in the state legislatures and these Party organizations are strictly hierarchically and bureaucratically arranged.Footnote 22 Table 2 lists the Party organizations in the NPC and SCNPC.
Overview of the Party organizations in the NPC and SCNPCFootnote 24
The LPMGs in the state legislatures discuss and decide on the following major issues of the units: (1) The enforcement of the significant measures made and deployed by the Party Central Committee and the Party organizations at higher levels. (2) The significant issues in the drafts of laws, administrative rules, regulations of ministries and local governments and other normative documents. (3) The development strategy, major deployments and issues of the professional work, and so on.Footnote 23
The general quantitative majority of the Party members as well as the LPMGs established in the leadership of the state legislatures ensure the absolute and seamless control of the Party over the state legislative organs. Under the precondition of organizational control, the Party’s control over state legislatures is realized in various concrete ways. In the NPC, for instance, the Party can directly intervene into the legislative processes mainly through the power to introduce legislative bills and propose “legislative suggestions”—lifa jianyi, 立法建议”— and the mechanism of “requesting for instructions and reporting on major issues” —hereinafter the Mechanism RIRMI, zhongda shixiang qingshi baogao zhidu, 重大事项请示报告制度”—.
Formally, the Legislation Law of the PRCFootnote 25 only stipulates limited kinds of subjects that can introduce legislative bills into the NPC.Footnote 26 Nominally, the Party organizations on the national level are not eligible subjects that can propose legislative bills. However, due to the universal existence of Party control in these formal subjects of legislative bills, the legislative bills are usually initiated, drafted and reviewed in advance by their internal mechanism of Party control before being submitted to the NPC.Footnote 27 Thus, the control over legislative bills actually endows the Party with a recessive power to introduce legislative bills into the formal state legislatures. Further, the Party can also exercise its wills in the NPC by proposing the so-called “legislative suggestions.” The legislative suggestion means that the Party directly “tells” the NPC what to do in the form of “suggestions.” It is not a legally defined way. However, it is a more overt and convenient way for the Party to intervene into the legislative processes. Notwithstanding the form of “suggestions,” the NPC must fulfill such Party’s political orders in the form of formal legal processes. An official report states:
Since the founding of new China, all the amendments to the Constitution were drafted by the CCP Central Committee. It then delivered the drafts in the form of legislative suggestions to the NPC. This is an important way for the Party to lead the legislation. […] The Anti-secession Law and other major legislative projects were also based on the legislative suggestions of the CCP Central Committee and drafted by it.Footnote 28
The mechanism RIRMI means that Party organizations at lower levels ask for instructions from and reporting to the organizations at higher levels on major issues; Party members and leading cadres ask for instructions from and reporting to the Party organizations on major issues.Footnote 29 Party organizations must ask for instructions from Party organizations at higher level on a wide range of issues,Footnote 30 including major legislative matters.Footnote 31 In many cases, this intra-Party mechanism has actually become an indispensable formal step embedded into the NPC legislative processes. Since the eighteenth National Congress of the CCP in 2012, the SCNPC has reported to the Party Central Committee and requested for its instructions on all major legislative matters in the name of the LPMG of the SCNPC. By doing this, a normalized and institutionalized mechanism has been established.Footnote 32 Through this mechanism, the Party can: (1) Define the guidelines and strategies of the legislation; (2) examine and approve the legislation plans of the SCNPC;Footnote 33 (3) study and discuss important drafts and make decisions on major issues involved in the drafts.Footnote 34
III. The Professional Dependence of the Party on the State Legislatures
The CCP repeatedly emphasizes its power to oversee and intervene into the legislative processes within the NPC and SCNPC. However, in fact, the Party’s actual intervention into the concrete legislative processes is limited and highly selective.Footnote 35 The making of the PRC Civil Code can provide a good example for explaining this. The Civil Code compilation was a significant legislation project for both the Party and the state in the past few years. The role of the Party Central Committee in the legislative processes of the SCNPC for making the Civil Code was clearly published.
The making of the Civil Code is “a significant political and legislative task defined by the Fourth Plenary Session of the 18th CCP Central Committee.”Footnote 36 It was incorporated into the “Decision of the CCP Central Committee on Some Major Issues Concerning Comprehensively Advancing the Governing the Country According to Law,” adopted in October 2014. After that:
[I]n June 2016, August 2018 and December 2019, the General Secretary Xi Jinping presided over the Meetings of the Standing Committee of the Political Bureau of the CCP Central Committee three times. In these Meetings, he listened to and agreed in principle to the requests for instructions and reports made by the LPMG of the SCNPC on the codification of the Civil Code, gave important instructions on and provided important and basic guidelines for the codification of the Civil Code.Footnote 37
In the official release, it is repeatedly emphasized that “the strong leadership of the CCP Central Committee is the decisive factor for successfully fulfilling the codification of the Civil Code.”Footnote 38 The major issues and matters during the making of the Civil Code decided by the CCP Central Committee includes “the overall consideration and work steps of the codification of the Civil Code as well as the style and structure of the Civil Code.”Footnote 39
However, except the above-mentioned information, more details about the role of the Party Central Committee in the legislative process are absent. For example, how did it decide on the structure of the Civil Code? What kind of instructions about the major issues and matters did it give? Thus, the emphasis on the role of the Party Central Committee in the making of the PRC Civil Code is more a political reiteration of the overall leadership of the Party in the legislation area. It demonstrates the total control of the Party Central Committee over the major state legislation project. It never means that the Party Central Committee concretely participated in the formulation of the articles of the Civil Code or other professional works. This can be also extra proved in the same official release. It says:
According to the work deployment of the Party Central Committee, the drafting of the Civil Code is led by the Legislative Affairs Commission of the SCNPC, with the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Justice, the Chinese Academy of Social Sciences and the Chinese Law Society as participating units. In order to do a good job in the codification of the Civil Code, the Legislative Affairs Commission of the SCNPC and the five participating units set up a coordination group and a taskforce.Footnote 40
The Legislative Affairs Commission as well as the five participating units are the specialized legal departments on the central level. Based on their professional forces consisting of legal experts and other elites, they are the actual maker of the PRC Civil Code. What further to note is that the academic forces from the top law schools in China also significantly contributed to the making of the PRC Civil Code.Footnote 41
The Party Central Committee indeed played a crucial role in the making of the Civil Code. This can be explained from two dimensions. Politically, it initiated the project of making Civil Code as a political task what endows the making of the Civil Code with indispensable political priority in the unique Party-state politics. By doing this, the Party ensured the smooth implement of such a significant task in the jungle of the intricate Party and state bureaucracies. Organizationally, it integrated and centralized all the necessary legal professional forces from the bureaucracy and the scholarship for making the Civil Code and guaranteed the efficiency of the working process of the codification of the Civil Code. In this sense, the Party is not the actual maker of the Civil Code. Rather, it is the organizer of the project of Civil Code making. The role of political initiator and project organizer of the Party in the state legislation is also embodied in other important legislation areas. In the 2020 Work Report of the SCNPC, it asserted that “the most striking characteristic of the SCNPC’s works is that it closely follows the major decisions and deployments of the Party Central Committee.”Footnote 42 In the past few years, the national security was one of the work focuses of the Party. Correspondingly:
[I]n accordance with the decisions and arrangements of the CCP Central Committee, the NPC and its Standing Committee have formulated and revised a number of important laws related to national security, such as the Anti-espionage Law (2014), the National Security Law (2015), the Network Security Law (2016), the Nuclear Security Law (2017), and the Anti-terrorism Law (2018).Footnote 43
In the vertical dimension, the Party Central Committee maintains a strong control over NPC and its Standing Committee. However, this control does not originate from the actual and direct intervention into the concrete legislation issues. Rather, it derives from the general leading status of the Party in the state legislative organs through the Party’s internal organizational channel. At most, the Party Central Committee sets the general goal and the overview idea of one enactment, or endows one enactment with some degree of political significance and priority. But the formulation of legal clauses are afforded by the professionalized state organs and in many cases supported by academic forces from universities or institutes.
Horizontally, the Party’s leadership over the state legislature is realized by the LPMGs as well as the quantitative dominance of the Party’s members. In general, the members of the LPMG and other common Party members in the SCNPC have two identities: On the one hand, they are political elites as Party members; on the other hand, they are also professional elites as specialized legal forces or experts in other professional areas. In their double identities, the identity of professional elites is undoubtedly more salient in the day-to-day legislative affairs. It is obvious that the politics alone is not enough, namely, mere pure political considerations cannot cope with the huge amount of matters and issues for regulating a country like China.Footnote 44 As demonstrated above, some scholars tend to criticize the Party’s intervention into the activities of the state legislatures and argue that this intervention distorts the own legislation of the state and renders the latter to be “anti-formalist,” “irrationalist,” and “politicalized.”Footnote 45 However, under the political reality of the Party-state, there is no state legislature out of the Party. Thus, such kind of critics is apt to be ambiguous and pointless. Further, it is worth noting that there is no completely abstract “Party” entity transcending all individual members. Rather, the Party consists of the living Party members and is shaped by the latter. In this sense, the Party consisting of the acting members cannot be purely political entity breaking away from all the involvements into the real world. Likely, notwithstanding their Party member identity, the members of the SCNPC must act more as real legislators and professional bureaucrats in the legislative affairs. The professional identity of the SCNPC members is also the fundament on which the Party must rely in order to enact laws needed for regulating a highly specialized modern society.
In the past decades, the professional level of the SCNPC was steadily improved. Structurally, the Standing Committee of the twelfth NPC, which ran from 2013-2018, consisted of 175 members. From the perspective of the education degree, 30.9% of them obtain a bachelor degree, 36.5% of them have a master degree and 28.6% of them have doctor degree.Footnote 46 Their professional background covers science and engineering (26.9%), social sciences (50.9%), medical science (3.4%), humanities (13.7%), military science (3.4%) and so on.Footnote 47 The systematic higher education and professional training of the SCNPC members indicates the gradual rationalization and professionalization of the SCNPC aiming to act as a legislative body in a modern state. The professionalization of the SCNPC is more obvious when compared with the education degree of the members of the Standing Committee of the sixth NPC, which ran from 1983–1988, in which only 57% of them had a bachelor or higher degree.Footnote 48 The statistics about the members of the Chairmen Council of the thirteenth SCNPC show also the similar image. All the sixteen members of the Council of the Chairmen have the education degree of undergraduate or above. 81% of them have postgraduate or doctor degree.Footnote 49 Further, as the state legislative body, the SCNPC is widely supported by ten Special Committees of the NPC, four working bodies of its own, a large amount of the common technocrats within the SCNPC and NPC as well as the extensive academic forces from the high schools and institutions. In sum, the SCNPC acts as a normal state legislative body like any other state legislatures. This contributed to the boom of legal norms and the whole progress of the socialist rule of law in the past decades.
Overview of the Educational and Professional Background of the Members of the Chairmen’s Council of the 13th SCNPC
IV. The Party in the Party-Legislation
According to the Internal Statistical Bulletin of the CCP, “as of December 31, 2021, the total number of CCP members is 96.712 million and the CCP has 4.936 million primary organizations.”Footnote 50 These statistics show the scale of the CCP and the necessity of the Party’s internal regulation and self-maintenance. As a tremendous political organization, the CCP has to develop its internal regulations to regulate the acts of its members, build the Party’s united wills and render itself capable of action.Footnote 51
The CCP is also aware of the significance of the intra-party legislation in regulating the Party itself and the state affairs. As one of the efforts to strengthen the socialist rule of law state, the intra-party “rule of law” has been enhanced to an unprecedented important level since the eighteenth CCP National Congress. Parallel to the state formal legal system, the intra-party rules system has been considered to be an indispensable part of the Chinese socialist rule of law. In October 2014, the Fourth Plenary Session of the eighteenth CCP Central Committee established the formation of a sound intra-party legal system as an important part of the construction of the socialist rule of law system with Chinese characteristics, and made a clear plan to strengthen the construction of intra-party legal system. In December 2016, the first national working conference on intra-party laws and regulations in the history of the Party was held to thoroughly implement the decision and deployment of the Party Central Committee and the important instructions of the General Secretary Xi Jinping on the construction of intra-party laws and regulations. In October 2019, the Fourth Plenary Session of the ninteenth CCP Central Committee stressed the need to accelerate the formation of a sound intra-party legal system. In November 2020, the Central Conference on the Comprehensive Rule of Law stressed the need to build a socialist rule of law system with Chinese characteristics and form a complete system of intra-party laws and regulations. All the measures taken after the eighteenth CCP National Congress achieves a key transformation of the narrative on the Chinese socialist rule of law. When the “socialist rule of law” solely refers to the formation of a formal state legal system and the guarantee of its implementation in the period before 2014, it extends to include the governance of the Party into itself and weakens the narrative monopoly of state laws in the socialist rule of law.Footnote 52
Although the constitutional concept “socialist rule of law” emphasizes the “uniformity and dignity of the socialist legal system,”Footnote 53 what is absent in this concept is the role which the intra-party regulations play in the socialist rule of law state. Logically, it is reasonable that in a formal state legal system, the intra-party regulations enacted not by the state legislatures and their formal legislation procedures naturally are not part of the state laws. Thus, only the state laws can exert the binding force over the general state citizens and the intra-party regulations can exert its binding force over the Party members. However, given the Party’s monopoly of the state powers in the Chinese Party-state and the strict organizational control of the Party over the state organs, the Party can directly or indirectly intervene into the state day-to-day affairs and, as a consequence, the penetration of the binding force of the Party’s internal regulations into the formal legal system is also inevitable.
In its nature, the establishment of a state formal legal system was firstly a political expediency to restore the domestic order after the Cultural Revolution. Then, it becomes an instrument for the Party to accomplish its modernization project. Thus, the instrumentalisation of the legal system and the instrumentalist understanding of law are always the critiques accompanying the Party’s building of a “socialist rule of law state.”Footnote 54 The Party determines the degree of the autonomy granted to the state formal legal system. When the Party changes its will, the space of the state formal legal system also changes. This is exactly the case which happened in the past decade. The Party put great emphases on the intra-party regulations and created a more systematic intra-party normative system. Parallel with the state legal system, the intra-party regulation system provides extra origins of the normative forces and, in some cases, extrudes the space of the former. This also properly explains the origins of many Western observers’ worries about the erosion and degeneration of the existing “socialist rule of law” system.
The Party strongly accelerated the rationalization of the intra-party regulations by perfecting its internal legislative mechanism. The most notable measure is the enactment of the “Regulation on the Formulation of Intra-Party Regulations of the Chinese Communist Party.”Footnote 55 This regulation is called the “Intra-Party Legislation Law (“IPLL”)” co-existing with the State Legislation Law (“SLL”). In the IPLL, the intra-party regulations are defined as:
[R]ules developed by the central organizations of the Party, the Central Commission for Discipline Inspection, the functional departments of the CCP Central Committee, and the CCP committees of provinces, autonomous regions, and municipalities directly under the Central Government, which manifest the Party’s unified will and regulate Party leadership and Party building, whose implementation is ensured by Party discipline.Footnote 56
Like the SLL, the IPLL stipulates the matters which the intra-party regulations regulate,Footnote 57 the formsFootnote 58 and hierarchical forcesFootnote 59 of the various intra-party regulations, the authorities, and the procedures of making the intra-party regulationsFootnote 60 , and so on.
The Hierarchical Order of the CCP Intra-party Regulations
Together with the IPLL, the CCP also enacted other regulations concerning its internal legislation, such as the Provisions of the Chinese Communist Party on Filing and Review of the Intra-Party Regulations and Regulatory DocumentsFootnote 61 and the Provisions of the Chinese Communist Party on the Responsibility System for Implementation of Intra-Party Regulations—for Trial Implementation.Footnote 62 Further, the Party’s legislation work is guided by its internal legislation plan, such as the Outline of the Plan for Formulation the Central Intra-party Regulations, 2023–2027.Footnote 63
All the efforts the CCP made has created a quasi-legal system within the Party. According to an official report, as of July 1, 2021, 3,615 intra-Party regulations are currently in effect. Of these, 211 were formulated by the CCP Central Committee, 163 by the Central Commission for Discipline Inspection and the functional departments of the CCP Central Committee, and 3,241 were formulated by Party committees of provinces, autonomous regions and municipalities directly under the Central Government. Among the intra-party regulations currently in force, there is one Party Constitution, three Standards, forty-three regulations, 850 provisions, 2,034 measures, seventy-five rules and 609 detailed rules.Footnote 64
C. Party-Legislation of the CCP—A Positivist and Typological Study
The IPLL defines the scope of the intra-party regulations as the intra-party matters.Footnote 65 Nevertheless, due to the leading and monopoly status of the CCP in the Party-state, its internal normative rules inevitably intervene into the state affairs. Thus, in many cases, the intra-party regulations are not purely internal. Based on whether the Party-legislation involves the state matters, the intra-party regulations can be categorized as three types, namely the pure intra-party regulation (PIPR), the state-parallel intra-party regulation (SPIPR) and the supra-state intra-party regulation (SSIPR) which can independently impose restraints on the legal rights of the Party members even without the basis of the corresponding state laws.
I. The Pure Intra-Party Regulations
Strictly speaking, under the high homogeneity of the Party and state, there are actually no “pure intra-party matters” in the Chinese Party-state, because any change of the matters within the Party has its direct or spillover effects on the state. For instance, the “selection, promotion, education, management, and supervision of Party leaders” are defined as one of the typical intra-party matters in the IPLL.Footnote 66 However, given the Party’s seamless organizational control over the state organs, such kind of intra-party norms are unavoidably also state-involving especially by appointing Party leaders to assume the corresponding state organ positions. Thus, what is here defined as “pure intra-party regulations” mainly refers to those intra-party regulations which aim to achieve the Party’s self-maintenance and self-regulation and contain no direct and clear rules concerning the concrete state affairs.
The PIPR exerts its direct forces merely within the Party and regulate the conducts of the Party organs and Party members. In the past several years, the CCP enacted a large amount of PIRP on the Party’s central level. These PIPR principally aim to strengthen the so-called “governing the Party according to regulations (yigui zhidang, 依规治党)” and normalize the Party’s internal construction in the vital areas, including the Party’s internal political life—the intra-Party political discipline,Footnote 67 integrity, self-discipline and anti-corruption,Footnote 68 accountability,Footnote 69 intra-party supervision,Footnote 70 inspection work,Footnote 71 intra-party election,Footnote 72 organization work,Footnote 73 work regulations of Party organs,Footnote 74 rights of Party members,Footnote 75 education and management of Party Members,Footnote 76 decision-making process,Footnote 77 disclosure of Party affairs,Footnote 78 the internal legislation,Footnote 79 and so on.
II. The State-Parallel Intra-Party Regulations
The SPIPR means that in certain areas of the state affairs, the Party directly participates into their regulation in the form of intra-Party regulations parallel with the state laws. The SPIPR cover various areas of state affairs. However, whether the Party promulgates a SPIPR in a certain area highly depends on the Party’s will and work focus. Generally, as shown in the following table, the intervention of the Party into certain areas of the state matters in the form of SPIPR is irregular and selective.
Usually, the SPIPR are enacted in those areas in which there already exist corresponding state laws. The making of the SPIPR demonstrates that the Party puts greater emphasis on this area so as to strengthen its regulation together with the state laws. One example in the area of work safety shows that the Party usually intervenes into the area of great significance and in which there currently exist major and urgent problems.Footnote 80 The regulation areas of the SPIPR become effectively the overlapping areas of the intra-party regulations and the state laws. Table 4 enumerates some typical samples of the newly enacted SPIPR and their corresponding state laws.
Samples of the SPIPR and Their Corresponding State Laws
Unlike the PIPR which exerts its force on the state organs only indirectly through the Party organizations imbedded in them, the SPIPR usually contains the direct and clear rules which regulate the relevant concrete state affairs as showed by the following samples (Table 5):
Samples of the SPIPR and Their Direct State-Affairs-Relevant Rules
Further, in the recent development, there is also the case in which the state law is replaced by an intra-party regulation. For example, the system of Complaint Letters and Visits (xinfang, 信访) was a state legal system for handling the petitioning of the citizens established by the State Council’s Regulations of Complaint Letters and Visits.Footnote 81 Due to the significance and sensibility of the xinfang in maintaining the social order and stability, the Party decided to improve the status of the xinfang system and strengthen its functions. In 2022, the Xinfang Regulation of the State Council was abolished and replaced by the intra-party regulation “Work Regulation on Complaint Letters and Visits (WRCLV).” Different from other kinds of SPIPR which are solely made by the Party’s organs, the WRCLV was deliberated and approved by the meeting of the Political Bureau of the CCP Central Committee and jointly issued by the Central Committee and the State Council.Footnote 82 It demonstrates a new form of joint legislation of the Party and the state and embodies a greater degree of fusion of the Party legislation and the state legislation.
Besides the joint intra-party legislation of the Party and the state organs, there are also considerable so-called “normative documents (ND, guifanxing wenjian, 规范性文件)” jointly issued by the Party and the state organs. In its nature, the ND is not a kind of intra-party regulations defined in the IPLL.Footnote 83 Rather, it is a kind of policies (zhengce, 政策). However, the ND are highly similar to the SPIPR: On the one hand, they possess general binding forces like the intra-party regulations; on the other hand, they also participate into the regulation of certain areas of state affairs which are regarded as important by the Party. Based on the significance of the matters which are to be regulated, the ND are jointly issued either by the Party Central Committee (PCC) and the State Council or by the General Office of the Party Central Committee (GOPCC) and the General Office of the State Council (GOSC). The forms of the ND are usually “opinions (yijian, 意见),” “outlines (gangyao, 纲要),” “programs (fang’an, 方案),” and “plans (guihua, 规划).” Table 6 shows some samples of the typical ND which are recently issued.
Samples of the Normative Documents
III. The Supra-State Intra-Party Regulations
The third type of the intra-party regulation is the supra-state intra-party regulation. What the SSIPR means is that as a normative source, the SSIPR can independently impose major constraints on the constitutional and legal rights of the Party members, as state citizens, outside or above the state laws, inter alia, the deprivation of the personal freedom. The SSIPR creates a supra-state basis for the Party’s behaviors. The most typical SSIPR was the “Work Regulations on Case Inspection of the Discipline Inspection Organs of the CCP (WRCI).”Footnote 84 By it, the CCP established one highly controversial system “shuanggui (双规).” Literally, Shuanggui means “at a designated time and place.” It is an investigation measure used by the Party’s discipline inspection organs to investigate the Party members suspected to violate the Party’s disciplines. The suspect is required to explain the issues involved in the case at a designated time and place and, at the same time, deprived of personal freedom and other legal rights, such as the procedure rights of the suspects in the ordinary state criminal procedure.Footnote 85
In its nature, Shuanggui is a kind of criminal procedure. According to the Constitution and the Legislation Law of the PRC, in the area of criminal matters, only the National People’s Congress has the power to promulgate a law and the criminal matters shall only be governed by law.Footnote 86 However, unlike the ordinary criminal measures which are established by the formal state criminal laws,Footnote 87 Shuanggui is established by an intra-party regulation. It is not a part of the formal state judicial procedure. Rather it is an intra-party measure which is exerted on the suspected Party members ahead of the state criminal procedure.Footnote 88 It infringes on the personal freedom of the Party members as state citizens and surpasses the state laws.Footnote 89 Thus, in a long term, Shuanggui raises significant concerns in the areas of human rights and rule of law and causes great doubts on its legitimacy and considerable fierce critics.Footnote 90
Actually, the CCP has also been aware of the great challenges posed by the WRCI to the state legal system and the socialist rule of law. In March 2018, the National People’s Congress amended the PRC ConstitutionFootnote 91 and promulgated a new state supervision law.Footnote 92 In this law, the previous intra-party measure Shuanggui ended its nearly 30-years history and is transformed to liuzhi (留置), a measure, just like other criminal coercive measures, formally defined by a NPC law.Footnote 93 As one of the most important investigation measures under the state supervision power, Liuzhi achieves the legalization of the previous intra-party Shuanggui and eliminates the extreme tension between the SSIPR and the state laws.
IV. The Legislating Behaviors of the CCP and Their Influences on the Socialist Rule of Law State
Legislation is one of the most important action forms of the CCP in the Chinese Party-state. The behaviors of the CCP in the legislation provide the conducive areas for evaluating the evolution of the Chinese socialist rule of law. The influences of the legislating behaviors of the CCP on the socialist rule of law state can be observed from two dimensions, namely the Party’s role in the state legislation and the Party’s own intra-party legislation.
From the state side, the original connotation of the socialist rule of law has never been the absorption of the values of the Western rule of law. Rather, in the context of the Party-state, it merely means the separation between the Party and state which is based on the will of the former. The space granted by the Party to the state since 1978 essentially contributes to the independent evolution of the state legal system and guarantees the establishment and growth of various state institutions. In terms of the state legislation, under the reality of the Party-state and the homogeneity of the Party and state legislatures, there is actually no real separation between the Party and the state. From the very beginning of constructing a socialist rule of law state, the Party has never asserted to abandon its control over the state legislatures. Thus, the strict organizational control of the Party over the state legislatures has never changed.Footnote 94
However, in order to carry forward the modernization of the state, the state legislation has become a crucial instrument for the CCP to regulate the various fields of the society and economy. In this regard, the CCP highly depends on the professionalized and routinized legislating works in the day-to-day state mattersFootnote 95 and firmly maintains the indispensable independence and functions of the state legislatures. Non-separation in the separation and separation in the non-separation are the simultaneously existing reality in the Chinese Party-state. In this sense, strengthening the Party’s overall leadership in the recent years has not fundamentally changed the existing relationship between the Party and the state legislatures and the original meaning of the socialist rule of law.
From the Party side, the reinforcement of the intra-party legislation is an inevitable logical consequence against the great background of strengthening the Party’s overall leadership. Strengthening the intra-party legislation also brings influences on the state legislation, and, ultimately, the socialist rule of law. As enumerated above, some observers tried to analyze the results brought by the Party’s overall leadership from various frameworks.Footnote 96 However, some views which argue that the reinforcement of the intra-party legislation leads to “the political” or “law-transcending/illiberal political leadership” need further examination based on the positivist and typological analysis. As demonstrated above, the intra-party regulations of the CCP are not totally onefold, and a further positivist examination can differentiate three types of the intra-party regulations. The three types of the intra-party regulations exert different influences on the state legislation and the socialist rule of law.
Essentially, the PIPR is self-referential. The CCP as a party needs rules to achieve its self-regulation and self-maintenance. The reinforcement of the enactments of the PIPR in recent years help the CCP to improve the Party’s ability to form a united will and to act. The enactments of the PIPR contribute to the anti-corruption campaigns within the Party. However, in the most cases, the rules of the PIPR do not directly involve the state affairs and do not occupy the space of the state legislation. Thus, the PIPR basically has no direct influences on the state affairs and the state legal system, either.
Unlike the PIPR, the SPIPR deeply, widely and directly participates in those state matters where there usually exist state laws. Objectively, the SPIPR achieves the co-governance of the state maters together with the state laws. Nevertheless, in the overlapping areas of the SPIPR and state laws, the enactment of SPIPR does not mean that the SPIPR replaces, surpasses or contravenes the corresponding state laws.Footnote 97 Rather, the state laws still maintain its independence and keep its own indispensable space under the socialist rule of law. The state laws, instead of the SPIPR and the SPIPR-similar ND, function as the direct rules for regulating all the areas of the state and society. This can be more clearly elucidated from the judicial perspective: In the law enforcement of the courts, the SPIPR and ND have rarely been the direct enforceable rules like the ordinary state legal rules.Footnote 98 What here also to note is that, the samples of the SPIPR and the NDFootnote 99 reveal that in the governance of the Chinese Party-state, there is actually no pure areas of the so-called “the political” which is supposed to be the proper realm of the Party’s behaviors.Footnote 100 Rather, the Party’s behaviors do not limit themselves to “the political” and intervene deeply into the day-to-day operations of the state wherever it deems important. The Party and the state co-govern the Party-state.
The real challenge posed by the intra-party regulations to the socialist rule of law was the SSIPR. The SSIPR created an extra-legal normative source above the state. As the Shuanggui system established by a SSIPR shows, this extra-legal measure displays major constraints on the citizens’ legal rights. Basically, the SSIPR denied the separation between the Party and the state and replaced the latter by the former. It was a huge tear of the state legal system and the socialist rule of law.
D. Conclusion
The wide and deep participation and intervention into the legislation is a notable action form for the CCP to govern the Chinese Party-state. Notwithstanding its dominant role in the state legislation, the CCP generally guarantees the functional independence of the state legislation and maintains the core connotation of the socialist rule of law which presupposes the separation between the Party and the state. The boom of the intra-party legislation is a remarkable phenomenon in recent years. However, unlike the common points of view which argue that the intra-party regulations can indiscriminately challenge the existing socialist rule of law, the positivist and typological survey shows that different kinds of the intra-party regulations exert different influences on the state legislation and, ultimately, the socialist rule of law.
However, on the whole, against the great background of the CCP’s reinforcement of its internal legislation, there is an obvious tendency in recent years, namely the partisanization of the state legislation and the legalization of the Party legislation. On the one hand, as the Xinfang system shows, the matters which were previously regulated by the state law can be transformed to the matters governed by the intra-party regulation. On the other hand, as the Shuanggui system shows, the matters which were previously regulated by the intra-party regulation can be transformed to the state law. The partisanization of the state legislation and the legalization of the Party legislation render the division and boundary between the Party legislation and the state legislation more ambiguous and indicate the trend of the function-fusion and the function-interconvert of the intra-party normative system and the state normative system. Consequently, the existing separation of the Party and the state could be feebler and the socialist rule of law could afford more pressures in a foreseeable future.
Acknowledgements
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