Chinese Rule of Law: The Rhetoric and The Reality
By Stanley Lubman, The Wall Street Journal, China Real Time Report
Two recent law-related events — a harsh conviction and a lofty statement by a leader — reflect basic tensions in Chinese law and governance that will likely continue to grow.
A dedicated Chinese democracy activist, Liu Xianbin, was sentenced on March 25th by a Beijing court to 10 years in prison for “slandering the Communist Party.” His conviction came just weeks after Wu Bangguo, Chairman of the Standing Committee of China’s National People’s Congress (NPC), presented a report at the legislature’s plenary session in early March in which he stated that China has attained the goal set in 1997 of establishing a “complete set of laws” — that is, “a socialist system of laws with Chinese characteristics.” Wu warned that China must “never waver on key fundamental issues of principle such as the fundamental system of the state.”
Liu’s punishment and Wu’s speech demonstrate that the Chinese Communist Party (CCP) does not intend to loosen its authoritarian grip on Chinese society or to soften the party-state’s determined suppression of democracy advocates.
According to news reports, Liu’s conviction was apparently based on articles that he wrote for overseas Chinese language publications identified with advocacy of human rights and democracy. One approved the use of street protests as a “tactic for the Chinese Democratic Movement.” The reports note that the vaguely worded offense on which the conviction was based is often subject to “broad interpretation” by the courts. The conviction came after he was denied access to a lawyer for months, and after only a brief (two-hour) trial at which he was cut off by the judge whenever he tried to speak.
Liu Xianbin’s conviction is not an isolated matter. Over the past several weeks, numerous advocates of political and legal reform have been arrested or disappeared, including six lawyers named in a letter from the Association of the Bar of New York City. In one extreme case, the wife of the noted activist lawyer Gao Zhisheng said in an op-ed in the New York Times neither she nor anyone in her family has heard from her husband since he disappeared almost a year ago.
And the crackdown continues: On Sunday, police reportedly detained outspoken artist and activist Ai Weiwei, long considered untouchable because of his celebrated poet father and high international profile, as he was trying to board a flight for Hong Kong.
These harsh actions reflect the government’s concern about “maintaining social stability,” which has increased in the wake of anonymous calls online for peaceful “Jasmine Revolution” protests against CCP rule that followed the outbreak of revolutions in the Middle East. But there is more playing out here than a simple contrast between free speech and totalitarian one-party rule: Nothing less than the future direction and content of legal development is at stake.
In his March speech, Wu said the government planned to revise existing laws, enact rules for implementation of the law and improve enforcement (PDF). Among the laws he tapped for revision were the Criminal Procedure Law and the Civil Procedure Law. The same session of the NPC Standing Committee saw enactment of several revisions to the Criminal Law, including a reduction in the number of non-violent economic crimes punishable by death and the addition of several new criminal offenses, including drunk driving, “wage default,” endangering food safety and “damaging the environment.”
During the session, another legislative official expressed the need to “enhance the awareness of laws, so people learn to use them to safeguard their legislative rights and interests.” Reference was also made to increasing public participation in law-making, such as by publishing draft laws on websites and inviting public comment. (There was, however, no mention was made of the slowness with which these innovations are being put into practice.)
In light of the blatant arbitrariness with which Chinese law has been applied to the activists who have been arrested or detained, public endorsements of law reform by a Chinese leader expose a contradiction between the rhetoric and the reality of Chinese law – a contradiction that is not likely to go away any time soon.
Since 1979, China has made progress toward establishing some version of the rule of law. But top-down legal reforms largely occur only around the edges of authoritarian rule. With the government eager to limit the scope of reforms to protect the status quo of Party rule, pressures from Chinese society for deeper and more meaningful reforms will only increase, particularly as the Internet and social media continue to broaden Chinese people’s awareness of events both within China and abroad.
The detention in February of a well-known blogger in connection with the Jasmine Revolution messages demonstrates that the party-state is well aware of the role the Internet plays in supplying pressure for reforms.
China is currently faced with the task of adapting the rule of law — a core concept of Western political and democratic theory – to Chinese circumstances. The response of the Chinese Foreign Ministry to the demand by a United Nations agency that Gao Zhisheng be released expresses Beijing’s implacable stance: “China attaches importance to cooperation with the UN human rights mechanisms,” a ministry spokeswoman said at a briefing in Beijing, then added the following:
“We also urge these mechanisms to maintain an objective and impartial attitude and to respect China’s judicial sovereignty. I would like to add that China is a country ruled by law, with an independent judiciary that handles cases.”
The contradiction of this last statement with the reality of law in practice is reflective of the central dilemma China’s leaders face. The spokeswoman’s references to China’s “rule by law“ and its “independent judiciary” reveal the impact of the language of Western concepts of law on China and are evidence of China’s ongoing and irreversible engagement with the West. But it remains unclear what the ultimate effect that engagement on China’s legal system will be.
As Chinese photographer, Wang Qingsong, who is concerned with changes in Chinese culture provoked by economic reform and whose photographs are currently on display in New York City, asks: “What kind of unimagined hybrid culture is going to result from the current collision of China and the West?”
We cannot know the answer at this moment in history. 4/4/2011