This article will seek to provide a brief exploration of what the rule of law is, its importance in a democratic society such as ours, and illustrate possible relevant concerns we may have regarding the rule of law with recent political advancements made by President Xi Jinping of China. Given its continuing emergence and clout as a dominant economic and military world power, largely fuelled by the tenacious ambition of Mr Xi, this discussion comes at a relevant time when other such statesmen such as President Donald Trump provide a less than satisfactory approach to championing rule of law and a vacuum in global leadership.
Firstly, what does this mysterious phrase mean? From my own perspective as a law student, the rule of law has certainly become less elusive as a concept but it is nonetheless still fairly difficult to pin down. Different states may have definitions of their own, we will be focusing on the UK’s conception. The late and celebrated Lord Bingham, a hugely influential voice of the judiciary in the modern era, defined the rule of law as enshrining “…that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. He opined additional conditions to this concept, that the law should be clearly accessible for all, it should apply to all, it should afford adequate protection of fundamental rights and adjudicative procedures provided by the state should be fair, to name a few. Others may add more niche requirements, such as freedom of the press.
Some legal scholars would argue that this goes too far. They would say that the rule of law should only contain the bare bones of what is necessary for a government to rule legitimately- and so we should only demand equality before the law and that no one is punished without breach of law. The view held by the immortalised constitutional theorist and legal scholar A.V. Dicey, that Parliament is the supreme maker of law in this country (our sovereign), has also formed an important part of the conceptualisation of our rule of law. A final important concept to introduce to our discussion of the rule of law is the separation (or balance) of powers- that members of the executive (the government), the legislature (Parliament) and the judiciary (judges) should have clearly defined powers and limits appropriate for a democratic society, so that their roles do not overlap and over-concentrate power in any one department or person (so for example, if our Prime Minister attempted to make themselves President of the Supreme Court, this would be a directive contravention to the separation of powers). This principle is somewhat relaxed in our constitutional system however, as members of the executive are still able to be MPs (Prime Minister May represents the constituency of Maidenhead).
So, while the definition of the rule of law may incorporate any or all of these important conditions, it is clear that their intent is to limit the power of government where necessary and promote its promulgation of fair law or rights. Much of our case law is concerned with this, such as Entick v Carrington, ex parte Pierson, and R v Davis. But many legal systems do not share these concerns- which brings us to the recent actions of Mr Xi. The Chinese Congress has approved the removal of the two term limit on the presidency, effectively allowing the President to remain in power for life. Our own political system lacks a limit on terms a Prime Minister may be re-elected, but they must maintain the support of the House of Commons, which could dissolve the government with a vote of no confidence. The vote has been widely disregarded by western media channels, as only two members of the national people’s congress voted against the change and three abstained, with the rest of the 2,964 members voting for the amendment. The National People’s congress is also potentially going to approve the ratified inclusion of the president’s personal political philosophy, Xi Jinping thought, into the Chinese constitution. In addition, the parliament will approve what looks to be a new administrative branch that merges parts of the ruling party, government, police and judiciary into a powerful “National Supervision Commission”, eliminating the separation of powers with regards to interrogating, searching and detaining public officials.
These developments will indisputably make Mr Xi China’s most powerful leader since Chairman Mao, alongside his aim to keep his positions as Party General Secretary and Military Chief. This is significant, as in most other countries, the state (and the government by de-facto) outranks any individual party. Usually the ministers of finance and foreign affairs (such as our Chancellor and Foreign Secretary) are the top governmental jobs following head of state. Within China however, they would be surpassed by the members of the Politburo and Politburo Standing Committee, the increasingly powerful inner sanctums of the Communist Party’s grandees.
To anyone invested in the grand idea of the rule of law, to protect democratic rights and keep the government’s coercive powers to a proportionate minimum, Mr Xi’s domestic dictatorial behaviour should ring warning bells. Internationally, Mr Xi presents himself cordially and collaboratively, championing globalisation, free trade and the Paris accord on climate change. His “Belt and Road Initiative” will send hundreds of billions of dollars of Chinese money to be invested abroad in railways, ports, power stations and other infrastructure projects that will help vast swathes of the world to prosper, possibly the most influential internationalist investment plan since the Marshall plan itself. Building on this commercial influence, Mr Xi has opened China’s first foreign military place in Djibouti and expanded militarily into the South Chinese Sea with artificial islands. Alongside this, it comes at probably no dismay to Mr Xi that President Trump favours isolationist and anti-globalist policies in order to please his voter base and stay true to his campaign pledges; this simply leaves more room geopolitically and economically for the emerging superpower of China to exert influence. But what kind of influence will this be, considering President Xi’s domestic blueprint for politics? At home he has a flagrant disregard for the rule of law, by over-concentrating power, discouraging freedom of the press and encouraging the disintegration of the separation of powers.
This article would advise its readers to make their own informed conception of what the rule of law means to them, whereby they can identify the ingredients of what they consider to be the ideal constitutional system for their country. This is important to consider when observing the actions of Mr Xi, who could become the world’s most powerful individual should the US continue on its current path of isolationism and reluctance to lead on the world stage. Mr Trump has a far from perfect track records as leader of the free world, and China’s efforts of international cooperation and outreach should be praised for what they are and the direct effects they will have- but those who are aware of the rule of law should be weary of the potential new world order, should international politics and economics pivot to the East.
8 April 2018