Two Big Stories, One Conclusion: China Has No ‘Legal System’
By Stanley Lubman, The Wall Street Journal
The illegal harassment of Chen Guangcheng and the reign of Bo Xilai in Chongqing each in their own way signal the fundamental weakness of Chinese law and the extent to which it serves as a tool to maintain the Party’s control of Chinese society.
Chen, the blind self-educated “barefoot lawyer,” was a victim convicted in a sham trial, imprisoned for over 4 years, and subsequently illegally held under house arrest for two years and brutally beaten by security forces before he escaped.
By contrast, Bo, the “princeling” son of a revolutionary, was the perpetrator of brutality. After becoming Communist Party boss of the world’s largest municipality, he launched an organized crime crackdown described by the New York Times as “a security apparatus run amok: framing victims, extracting confessions through torture, extorting business empires and visiting retribution on the political rivals of Mr. Bo.”
In each case, the question is whether formal legal measures will eventually be used to punish alleged violations of law.
After Chen’s dramatic escape from illegal confinement, he created a video in which he appealed to Premier Wen Jiabao to investigate and punish the police and officials responsible for their brutal violations of law. The Chen affair is ongoing in China with his and his immediate family’s promised departure for the U.S. still pending, so a central government response to his appeal won’t appear, if at all, until after they leave.
Recent revelations about Bo’s conduct as Party Secretary of Chongqing suggest that the campaign he ordered against alleged wrongdoers was marked by illegal treatment of people who were arrested, and there have been calls in Chongqing for investigation and punishment of violations of law by officials and police. According to some reports, Bo even reportedly engaged in illegal wiretapping of other leaders.
In considering the possibility that Chinese criminal law might be invoked to punish misconduct in either case, it would a mistake to think of China’s legal institutions as a “legal system.” Legal institutions in China, especially the criminal law, are part of a political system that ultimately directs their application and their use. They are essentially grounded on the dominant notion that law is to be used to keep the Party in power.
Laws are not implemented in a uniform manner in China. They are often vague, giving local officials the opportunity to ignore or vary their application and to exercise considerable discretion in many cases. Enforcement can be overly lax (as in cases of unlawful property takings by local governments or violations of food safety laws), excessively harsh, or downright ignored, as they were by officials in Shandong where Chen was harshly treated.
It is impossible to believe that Chen’s treatment was not well-known at high levels in Beijing. His case has provoked widespread coverage in the foreign press since 2005, and has been a topic of discussion among foreign NGOs and on the Chinese internet. The embarrassment that Chen has handed the leadership makes denial from Beijing of central government involvement in the ordeals of him and his family very difficult.
Nonetheless, admission of central government responsibility is unlikely. The most that can be expected is a conclusory statement about an investigation and its termination, probably with a token announcement about some punishment at the local level.
According to recent reports, an official of the State Bureau of Letters and Visits, the government department responsible for receiving complaints from regular people about mistreatment at the hands of officials, visited Chen in the hospital early last week. Yet as the Economist notes, “it is extremely rare for the bureau to resolve anything, despite the show of accountability.” In the meantime, left unaddressed is the question of how relatives of Chen be treated after he leaves for the U.S.
Chen’s nephew has been charged with attempted murder after a violent scuffle with local authorities in which, family members say, the nephew was only trying to defend himself. Lawyers have been warned away from the nephew’s case, with one reportedly detained and another having had his license revoked. Meanwhile, as many a half-dozen other family members have been questioned, released and told not to leave their village.
Bo Xilai has already been punished by removal from his position as Party Secretary of Chongqing and expulsion from the Party’s Central Committee. Under Chinese law and practice, members and officials who are found to have committed serious legal offenses are first punished by the Party’s own disciplinary organs, and then turned over to the police and courts for criminal prosecution. At the moment, this seems likely to be Bo’s eventual fate.
An investigation has begun into allegations that, under Bo, police officers in Chongqing used torture and subjected some people to cruel conditions in prisons. How Bo’s misdeeds are addressed might signal whether there will be any movement within the Party for greater adherence to law in the execution of its policies.
It is too early to tell whether the new leadership that is expected to begin taking over this fall might initiate measures that would reduce the dominance of Party policy – and, potentially, their own authority — over law. 5/14/2012