This post attempts to describe existing rules on judicial interpretation by the Communist Party of China (CPC), and to locate the organs of the CPC where the function of judicial interpretation takes place.
These questions were inspired by the tones of the international debate about the National People’s Congress interpretation of article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (full text here). Unlike academic debates on the NPC held in the 1980s and the 1990s, this time most of those who expressed their point of view on the NPC’s interpretation of article 104 did not seem to consider the NPC as an ‘hypostatic emanation‘ of the Communist Party of China. Yet, the South China Morning Post astutely observed how “A clear-eyed view of Beijing’s power” is needed.
Article 104 of the Hong Kong Basic Law (full text here), as interpreted by the NPC, regulates the proper form of the oath of allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. Dr. Jason Buhi has analyzed the legal issues involved in the NPC interpretation of article 104 in a wonderful article published on Law at the End of the Day. As I thought about judicial interpretation and the CPC, one line in Dr. Buhi’s analysis struck me:
We thus have a situation where common law courts must apply the Politburo’s intent regarding what constitutes “accurately, completely, and solemnly”
The intention held by those who originally drafted, proposed, or voted a provision of law is one of the possible methods that can be used to understand what words in a legal provision mean. This and all the other possible methods of interpretation do not belong to any legal system in particular. Neither are they exclusive to the field of law – they can be used to interpret a literary work, a piece of poetry, a work of art and so on.
For instance, the question of what the fresco below means may be answered by asking what the author of the fresco had in mind in painting a young, blonde man with long hair, with a lance in his right hand, and a circle in his left hand. Or, it may be answered by saying that the fresco of the young man represents just what we see – a young man with a lance and a circle. Or, it may be answered by asking what others have said about the fresco thus far, how the public would react if it were revealed the fresco portrays not a man, but the constellation of the Auriga, and whether we believe that such an hypothetical reaction may be useful for society, etc.
The question about what the frescoes in the Italian city of Ferrara mean is not much different from the question of what the words ‘accurately, completely, and solemnly’ mean.
This far, no one yet knows how members of the National People’s Congress Standing Committee understood what “One Country Two Systems 一国两制” mean. The more technical issues involved in the interpretation of article 104 of the Basic Law eventually relate to how the principle of “One Country Two Systems” should be understood and implemented. The National People’s Congress interpretation was silent on this point.
“One Country Two Systems” is invoked in the preamble of the Constitution of the PRC and of Basic Law, and therefore it is a principle of law. But, “One Country Two Systems” is also a political principle, mentioned in the Constitution of the Communist Party of China. This simpled fact prompted the questions of whether rules on judicial interpretation exist in the regulatory system of the CPC, and which Party organs can control, regulate, and interpret the Constitution of the Communist Party of China, and all that which derives from it.
Judicial Interpretation in the CPC’s Regulatory System Before 2012.
The Constitution of the Communist Party of China does not contain any rules on how legislation should be controlled and interpreted. This is not surprising. The Constitution of the CPC is a living, evolving document, that has underwent several rounds of amendments since 1921, and is complemented, and expanded by several other Party documents.
Until 1982, Constitutional amendments occurred following drastic shifts in the ideological, political, and policy orientation of China. From 1982 until today, Constitutional amendments have been made towards the end – or at the very end – of the mandate of the General Secretary of the Communist Party of China. Between 1982 and 2012, ‘Socialism with Chinese Characteristics’, the ‘Three Represents’, and the ‘Scientific Outlook on Development’ have been elevated to the rank of constitutional principles. An unposken, unwritten rule on how the Constitution of the CPC should be changed may be that all those policy lines which prove successful in practice will become constitutional principles, once the General Secretary will longer be in office. The existence of this rule however does not speak as to how the Constitution of the CPC should be interpreted.
To find an answer to this question, we have to dig deeper into the Party regulatory system. The first public rule on legal interpretation within the Party was created in 1990, by the Provisional Regulations on the Procedure to Enact Regulations Within the Party (here).
Article 28. The work of interpretation of regulations within the Party which have been enacted by the Centre, except where a department responsible for interpretation is clearly specified, shall concretely be undertaken by the Centre following a request for instruction by the Central General Office.
The ‘Centre’ (中央) designates the Central Committee of the Communist Party of China. The Central Committee is composed by ordinary members, by members of the Standing Committee, members of the Political Office of the Standing Committee, and by the General Secretary.
In enacting a regulation, the ‘Centre’ could choose whether to bestow the power of legal interpretation upon a specific organ of the Party, or keep the power of interpretation to itself. If the Centre chose to delegate the power of legal interpretation, then the power to explain what provisions in a regulation mean – and presumably also to solve a conflict among two or more regulations – belonged to a specific organ of the Party. The interpretation wss issued in the name of the organ. But, the task of understanding what words in Party legislation meant, how they should have been explained, and providing advice on their application was performed by those employed in ‘legislative departments’ (fazhiju) or in ‘research departments’ (yanjiuju). If the Centre decided to delegate its power of legal interpretation, then this power belonged to each one of the legislative or research deparments that existed within each one of the organs of the CPC. Article 28 of the Provisional Regulations did not specify who could invoke the power of legal interpretation of central Party organs. In practice, however, this power was invoked by local-level Party organs, by filing a ‘request for instruction’.
If the ‘Centre’ chose to keep the power of legal interpretation to itself, then finding an answer to the question of who can interpret law becomes more complicated.
The highest organ of the power of the CPC is the Central Committee. The Central Committee holds a plenary session only once every five years, therefore it can use its power of interpretation only when it is a session. The last time the Central Committee had a chance to use its power was in 2012. The next time the Central Committee will have a change to interpret Party regulations will be in 2017. When the Central Committee is not in session, interpretations can be issued by the Standing Committee, the Political Office, or the General Secretary. Article 28 of the Provisional Regulations allowed the Central General Office to address any of these organs through a ‘request for instruction’ but, it contained no indications on whether the ‘request of instruction’ should have been filed to the Standing Committee, the Political Office, or the General Secretary.
Article 30 of the Provisional Regulations specified when Party regulations could be annulled, and by whom.
Article 30. The Centre has the power to annull Party regulations promulgated by the Central Commission for Discipline Inspection, each central department, and Party committees of provinces, special administrative regions, and municipalities directly controlled by the Centre which conflict with the Party Constitution and with regulations promulgated by the Centre.
Article 30 was unambiguous in attributing the power to solve conflicts between Party regulations to the Centre. But, it did not specify whether such power rested with the Central Committee, the Standing Committee, or its Political Office. Also, article 30 contained no indications on whether a department of the Central Committee was responsible for controlling, regulating, and interpreting central and local level Party regulations.
Departmental and local-level regulations
According to the Provisional Regulations, regulatory power belonged not only to the Central Committee, but also to central level departments, and provincial Party committees (art. 2). Article 21 of the Provisional Regulations provided clues as to which organ could interpret departmental and local-level Party regulations
Article 21. The draft of a Party regulation must normally include the following:
(7) [an indication of] the responsible department or the department responsible for interpretation (解释)
The power to interpret departmental and local-level regulations belonged to the organ that enacted the regulation. Therefore, a regulation promulgated by the Personnel Department would be interpreted by the Personnel Department, a regulation promulgated by the Central Commission for Discipline Inspection would be interpreted by the Central Commission for Discipline Inspection, etc. But, article 21 allowed central and local Party organs to delegate their power of interpretation to a third party. For instance, the Central Commission for Discipline Inspection may have decided to enact a regulation, and to delegate ‘the work of interpretation’ to the Central General Office. This is not an hypothetical case. Even though no systematic research on this point has been conducted, in practice deparments of the Central Committee sometimes used to share their power of interpretation with other central departments.
Judicial Interpretation After 2012.
Performing the Work of Interpretation Well
Beetwen 1949 and 2012, central Party organs enacted more than 2,300 regulations on the most diverse matters. The figure for the regulations enacted by provincial and district level Party organs is uknown but, there is little doubt that is much more higher than this.
In 2012, the Five-Years Outline on the Work of Enacting Regulations Within the Party was drafted, with the objective of
performing the work of interpretation well, and guarantee that a precise understanding is reached of the intent of the enactment of regulations within the Party and of the meaning of their provisions
According to the Five-Years outline, interpreting Party regulations means both understanding why a regulation was enacted, and what the words in a regulation mean.
But, who has the power to understand why Party regulations are enacted, what their wording really means, and to explain all of this to Party members, Chinese citizens, citizens and residents of the Hong Kong SAR and the Macao SAR, and foreign citizens?
An answer to these questions is contained in the 2012 Regulations on Enacting Regulations Within the Party (here):
Article 29. The work of interpretation of regulations within the Party which have been enacted by the Centre is a responsibility of the organ that has promulgated them. Where an interpreting institution is not clearly specified, interpretation of central regulations promulgated before the entry into force of the Present Regulations is performed by the Central General Office after a request for instructions has been filed.
Party regulations promulgated by the Central Commission for Discipline Inspection, by each Central organ, and the Party committees of provinces, special administrative regions, and municipalities directly controlled by the centre are interpreted by the promulgating organ. (…)
Party regulations promulgated after 2012 are interpreted by the organ that has promulgated them. All central departments, and all provincial Party committees have the power to interpret the regulations they enact. Therefore, a regulation promulgated by the Standing Committee of the CPC will be interpreted by the Standing Committee, a regulation promulgated by the Personnel Department will be interpreted by the Personnel Department, and so on.
Legal intepretations made by central departments or provincial committees are legally binding, and they shall remain into force for the entire period of validity of the Party regulation they explain (Article 29).
The 2012 Regulations prohibit provincial committees to promulgate rules that conflict either with the Party Constitution, or with regulations enacted by the Central Commission for Discipline Inspection and by other central-level departments (article 25). Article 27 has also envisaged three different scenarios where a conflict may occur between central or local-level Party regulations and:
(1) the Party Constitution, and the Party’s theory, line, direction, policy
(2) the State Constitution and the law
(3) Central-level Party regulations
The power to solve these conflicts belongs to the Centre, and it is used at the Centre’s discretion, through a direct intervention (art. 28).
The Centre has chosen to abide by the following rules:
(1) where a lower-level regulation or law conflicts with a higher-level regulation or law, the higher-level regulation or law prevails (art. 25)
(2) Special regulations prevail over general regulations (art. 26) – Lex Speciali Derogat Generali
(3) More recent regulations prevail over general regulations (art. 26) – Lex Posteriori Derogat Priori
Rules (2) and (3) apply only to regulations promulgated by organs at the same level in the party-state hierarchy.
An intervention by the Centre in a legislative conflict would lead to the amendment or the annullment of one of the conflicting regulations or laws (art. 28).
Central-level interpretation in practice
This far, the Central Committee of the CPC has published only one interpretation of Party regulations. This document is the Explanation of the “Guidelines on Political Life Within the Party Under the New Situation” and the “CPC Regulations on Supervision Within the Party” .
The Explanation illustrates the reason why these two important documents in Party legislation were amended, recounts how they were drafted, and how the Guidelines on Political Life Within the Party Under the New Situation complement the Constitution of the Communist Party of China, by adapting it to the needs of time.