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Monday, November 17, 2014

 Xi Jinping at Fourth Plenum, Beijing
From 20 to 23 October, the Fourth Plenum of the Central Committee of the Communist Party of China convened in Beijing. The fact that the meeting was devoted exclusively to the Rule of Law was remarkable by itself. Below we will explain why the outcomes of the meeting are so important. We will do so after having explained the status of the 'Fourth Plenum'.  

The status of a Fourth Plenum
Since 1982, when the Constitution abolished lifelong tenure for leadership positions, Communist Party officials serve for a five year period. Since 1978, the Central Committee of the CPC has consistently held seven meetings, called 'plenums' during this term of office. Traditionally the First and Second plenums are devoted to filling the positions within the CPC and state organs.
The Third Plenum traditionally lays out the “big agenda” to be pursued by the Central Committee. Not surprisingly, Third Plenums have traditionally served as significant turning points for the course of the CPC. Thus, in 1978, the Third Plenum of 11th Central Committee decided to put an end to “mass class struggle” and to “make China a modern, powerful socialist country before the end of this century”. In 1993, the Third Plenum of 14th Central Committee formally endorsed the “socialist market economy”.
Historically, the Fourth Plenum focuses on strategies to be adopted in order to achieve the goals that have been set by the Third Plenum. Accordingly, the Fourth Plenum of the 11th Central Committee in 1979 adopted a number of important rural and land reforms. The Fourth Plenum of the14th Central Committee in 1994 discussed how to strengthen the CPC’s leadership role during the introduction of a socialist market economy.
On 12 November 2013, the Third Plenum of the 18th Central Committee adopted a reform agenda which listed 60 items aimed at deepening the reform. The Final Communiqué of the Third Plenum contains references to the traditional ideological sources, such as Marxism-Leninism, Mao Zedong Thought, and Deng Xiaoping Theory, but it stopped short of presenting the new philosophy of the Xi Jinping Administration. Therefore, the Fourth Plenum was expected not only to provide guidance on the implementation of the reform agenda, but also to lay out the ideology of General secretary Xi Jinping to guide the CPC. 

Embracing the Rule of Law
According to the Communiqué of the Fourth Plenum, the target of the Central Committee is  to build a country 'under the socialist rule of law'. This should lead to 'administration by law' and a 'law-abiding government'. This language goes one important step further that that used by the 15th Central Committee in 1997, which referred to 'building a socialist country ruled by law'. That language was mirrored in Article 5 of the Chinese Constitution, adopted in 1999, which stipulates that the People's Republic of China implements the rule of law and builds a socialist country ruled by law. 
According to the Communiqué, the Central Committee has committed itself to forming a system serving 'the socialist rule of law with Chinese characteristics'. Although it has undoubtedly been motivated by the intrinsic value of the Rule of Law concept, it is likely that other considerations also were taken into account. Thus, the Xi Jinping Administration has started a very visible and wide-ranging anti-corruption campaign, which targets both the 'tigers and the flies', i.e. both high- and low-ranking officials. This campaign can now be founded on the Rule of Law which will provide it with additional legitimacy.
In addition, it is clear that the Administration is keen on maintaining or even boosting economic growth figures on which its legitimacy depends to a certain extent. Embracing the Rule of Law will contribute to achieving this aim, since legal stability benefits the economy: it provides the legal certainty which people need to invest. The positive effect is not limited to Chinese companies but also extends to foreign owned ones, which will be even more eager to set up business in China. Thus, Charles Powell, who was Mrs. Thacher's foreign policy advisor and who now chairs the China-Britain Business Council, welcomed the decisions of the Fourth Plenum on the Rule of Law as being good for business.  
The Rule of Law may also assist the central government in keeping the local authorities in check and this too has an economic dimension. Local governments play a very important role in China also in the economic area. During the Deng era, their autonomy, also in fiscal matters, was enhanced, to unleash their economic potential. Consequently, the activities of local authorities increasingly have an impact on the economy, be it by running their own companies, by levying taxes, or by incurring debt. They also make a considerable contribution  to the revenue of the central government. The central government has some leverage through the promotion system of officials, but using the Constitution and the law as a correctional mechanism provides an additional safety valve.

The Constitution as core
The Central Committee has given centre stage to the Constitution. According to the Communiqué, the Constitution should be regarded as the core of the socialist legal system with Chinese characteristics. In order to realise the Rule of Law, the country should be ruled in line with the Constitution. This does not mean, however, that the Constitution will become justiciable or that China is about to introduce judicial review.
Currently there are two models for reviewing the constitutionality of legislation, i.e. judicial and political review. Judicial review was introduced by the U.S. Supreme Court in the well-known Marbury v. Madison case in 1803. Under this model judges are allowed to consider whether legislation is conformity with the Constitution and to declare it null and void when it fails that test. American style judicial review has spread to other parts of the world, especially to Europe. Political review is exercised by a body which is part of or set up by the legislature, which still has the final say. Thus, although the Constitutional Council in France can declare an act to be contrary to the Constitution, it is up to Parliament to translate this decision into a new law.    
Under China's current constitutional system, the introduction of judicial review is highly unlikely. The leading role of the CPC as guaranteed by the Constitution does not sit well with the Western concept of separation of powers or the authority of judges to overturn legislation. The 2001 Qi Yuling case, in which the Supreme People's Court proved willing to apply the right to education as guaranteed by the Constitution in a case brought against a public school, was regarded by some commentators as heralding a new era. However, the case was overturned by the Supreme People's Court at the end of 2008, and there are no signs that the Court is about to change track.
As the Communiqué makes clear, it will remain the task of the National People's Congress and its Standing Committee to supervise the implementation of the Constitution. However, according to the Communiqué, they are supposed to do a better job at it. Words matter in China, and it is a pubic secret that policymakers in Beijing are looking for ways to amply the political review of constitutionality of legislation, while leaving the power in the hands of the National People's Congress and its Standing Committee. Creating a review committee within the National People's Congress, comparable to the Comité Constitutionnel which was created by the Constitution of the Fourth French Republic, might be an option. The Comité had the authority to declare that a bill could only be adopted if the Constitution would be amended accordingly. The plenary Parliament was not formally bound by that decision, but it had a lot of explaining to do if it would decide to overrule it.
Interestingly, just after the Fourth Plenum had ended, a group of scholars led by Prof. Han Dayun of Renmin University in Beijing published an expert opinion on the interpretation of the Constitution. They suggest to enable all state organs, as well as all social organisations, enterprises, non-profit institutions and individuals to file a request with the Standing Committee of the National People's Congress for an interpretation of the Constitution. This suggestion, which leaves the political primacy of the National People's Congress and its Standing Committee intact, seems to have been inspired by the Chinese petition system, or xinfang, which dates back millennia. The publication of the expert opinion, which is based on the outcomes of a research project commissioned by the Justice Ministry in 2005, was very well timed. 

Tuesday, November 4, 2014

Letter from Ethiopia

Dear Reader

Cape Town, South Africa
I recently had the pleasure of visiting Ethiopia and revisiting South Africa, the country of my birth. I had never been to Ethiopia before and previous to that, heard many remarkable and wonderful things about it. Now that I have been there, I can safely vouch that it is remarkable country, rich in history, culture and tradition, with a delicious cuisine and great coffee. Most importantly, I found Ethiopians to be peace loving, and a warm and friendly people, and Ethiopia, a very safe place to be in. The lessons I learnt about and in Ethiopia will remain with me for a lifetime and has added to my development as a person, both personally and professionally. I am grateful, therefore, in this short way, to share my experiences with you.                                  

During January to April 2014, I conducted field research at African Union in Addis Ababa and at the Pan-African Parliament, an organ of the African Union in Midrand, South Africa. I chose to conduct interviews at both organizations mainly because I believed that they would better inform my insights on the legitimacy crisis currently characterizing the relationship between the International Criminal Court (ICC) and the African Union (AU), a topic on which my research is based. Some of the arguments in favor of this position and also advocated for by the African Union is that the Court is biased because all its prosecutions are against Africans.

The ICC, on the other hand, maintains that as an institution set up to combat impunity, it is keeping to its mandate by advocating for justice and victims needs in Africa, which remain inadequately addressed by some African leaders. While many of these assertions may or may not be true, there is a perception that the rift is widening between the Court and its African constituency.
Ethiopian Coffee Ceremony
To test this hypothesis, I decided that it would be best if I spent some time on the ground at the African Union, to see if this was indeed the case. The African Union is the spokesperson of African States and its relationship with the Court, from my perspective, should be explored more broadly than solely from a purely legal perspective, given the context in which it operates, namely more from a political vantage point. Similarly, the ICC, although established as a judicial institution and acknowledging itself as such, nonetheless functions in a politically charged, global environment. Taking these contexts into account, I have therefore decided to approach my research from both a legal and social science perspective, hoping to be better informed on the underlying issues, which needs uncovering.

The research methods I used during my travels were thus qualitative in nature, comprising participant observation and semi structured research interviews. Access to most respondents was secured through the snowball technique, a technique, which surprisingly was easy to accomplish at both institutions, where a very friendly and warm demeanor met me.

AU Headquarters, Addis Ababa, Ethiopia
My initial observations of the AU were impressive, and the main thing that stood out, was the new AU headquarters, costing roughly around 200 million dollars, considered a generous gift from the Chinese government. This magnanimous gift from the Chinese symbolizes the extent of the newfound friendship China and Africa share and serves as a precursor to future investment and future relations between both countries. Aside from the impressive AU architecture, the highlight of my stay was attending the 22nd AU Summit in Addis, with this year’s theme, focusing on Agriculture and Food Security In Africa. The discussions were stimulating ranging from conflict prevention, climate control, illegal exploitation of resources, and increased agricultural sustenance for the optimal development of a prosperous Africa in the coming years. 

In order, to tackle its core problem of African disunity, the AU has focused strongly on African culture, heritage and identity through the promotion of an ‘African Renaissance’ coined by the former President of South Africa, Thabo Mbeki, an intellectual and influential player within AU circles. The African Renaissance is aimed at fostering integration amongst African States, by forging a common African identity and is of particular relevance to the AU, because it contributes to strengthening the institution vocally, so as to speak with one voice, on vital issues of concern to Africa. Given its 54 member states, it is no easy task to mobilize and motivate States to unite on pertinent issues of particular relevance, especially when each State has its own political agenda and varied interests to take into account.

The AU, also, as an organization, focuses on security, and uses the full range of diplomatic and coercive measures available to it, to meet its mandate of fostering peace and security on the African continent. Given the severity of conflicts currently taking place in South Sudan, Mali and Central African Republic, peace concerns are pressing on the continent, and it is important to note that development of the African continent can only take place if conflicts are curbed and peace prevails. Peace, in other words, engenders development and development economic and social prosperity. It is therefore crucial for the AU to succeed in this part of its mandate if it is to be considered a legitimate regional institution in Africa and the world.                                                                 

Peace and Security Meeting AU Summit
These insights, I found are rather relevant because they relate to current ICC prosecutions, which some say, have had a destabilizing effect in certain regions in Africa, and impact larger concerns, such as peace efforts in Africa.  These and more related issues are explored in deeper detail in my thesis. So, whilst issues of AU and ICC discord go deeper than merely the ICC targeting Africa and the “race hunting of Africans”, I am optimistic that there is ample room for dialogue and improvement on this front. It is to this end that I am hoping that my research will contribute, and represent a balanced view of the issues at play, from the perspectives of both key players. I am grateful to report that a new chapter awaits me at the ICC where I will undertake a Visiting Professionals Programme for a period of three months, so as to be able to gauge the ICC’s perspective on issues of concern between itself and the AU. I look forward to report to you on my experiences at the Court, and the developments of my research, at a later stage. 

Yours sincerely,

Ingrid Roestenburg Morgan

Posted By Ingrid Roestenburg Morgan (Extracted from School of Human Rights Research Newsletter Fall 2014 available online at