China and the Rule of Law: Following in the Footsteps of the UK?

15 May

Alongside parliamentary supremacy and the separation of powers, the ‘rule of law’ is a cornerstone of the UK constitutional structure. Defining the concept is a task that could, and has formed the subject of entire books – for the purpose of this article, the ‘rule of law’ can be thought of as the principle that no one person is above the law – the law governs all, and all are subject to it. Lord Bingham, one of the minds at the forefront of British judicial development, described the rule of law as ‘equality before the law… insulated from the personal discretion of those in power’ (3).

Historically this is not a concept that China has embraced. Most of history has seen China utilise a Confucian philosophy of ‘social control through moral education’. This position was briefly altered after the 1911 Revolution, when the Republic of China adopted a German-influenced, Western style civil code. However, in 1946, the People’s Republic of China removed this constitution and returned to a more Socialist system of law. The principle of the rule of law guarantees legal supremacy over all beings, which is not something typically Chinese – the culture places more emphasis on personal relationships. Indeed, Riley has noted that the ‘good old days’ in China gave officials what was effectively an ‘option’ of law rather than a ‘rule’ – the laws are there if it is convenient to use them, but the State is not compelled to give action as ‘rule of law’ States, such as the UK are (2). This is made clearer by the fact that the Chinese word fǎzhì (法治), originally intended to mean ‘rule of law’ is now taken to actually mean ‘rule by law’.

Amidst constant allegations of corruption of public officials (as recent as Bo Xilai), surely it would make sense for China to continue marching towards the rule of law? Chinese society deserves a uniform standard through which all are governed equally – rather than a system where bribery and personal discretion of higher placed officials can reign supreme.

The question now becomes: what is stopping China from introducing a functioning ‘rule of law’? There are several potential pitfalls hampering Chinese progress in this regard. Firstly, the National People’s Congress (the body given charge by Deng Xiaoping in 1982 of drafting a new State constitution) are ineffective – they are unable to enforce the laws they establish. This article has already commented on the corruption of public officials – no rule of law can survive practically in a system whose integrity is so often questioned. Perhaps the most crucial reason why there is no rule of law, however, is that the political and judicial arms in China are not independent. While the judiciary is subject to political influence, no single decision made by the courts can be taken to have any real value – any form of ‘justice’ served must conform to the relevant political ideal, and therefore decisions made may not be the right ones. As the Chinese saying goes, ‘it is easy to catch fish in muddied waters’ – if only the Confucian principle that one cannot rule the State without first exercising discipline over oneself was upheld, this might not be a problem.

It has also been argued that China suffers from a lack of qualified legal professionals (2), meaning that even when laws are enacted, they are not interpreted or implemented as intended. Business lawyers are needed to understand this, but this is not the way lawyers are trained in Chinese universities. It is my suggestion that this problem might be solved by Chinese lawyers training in other jurisdictions, such as the USA or the UK, where the relevant training is available. Chinese lawyers trained in this way are proving to be very successful in the World Trade Organisation (WTO) framework – it might be that transferring this knowledge back into internal Chinese legal affairs will help China reach the ‘rule of law’ goal.

So, can the ‘rule of law’ expect an introduction into Chinese society in the future? The Washington Post (4) has argued that even where educated legal rights activists call for such an introduction, Chinese government quashes their calls. The horrifying tale of Gao Zhisheng is poignant here – he, and his family were beaten, tortured incommunicado and finally imprisoned for what seems to be the simple ‘crime’ of speaking out in protection of people’s rights. Gao famously said that in China, ‘you cannot take on a legal rights case without becoming a legal rights case yourself’. No matter how many young lawyers or forward-thinking activists take up the mantle of the ‘rule of law’, they are destined to meet an impassable obstacle where the Chinese authorities continue to act with such brazen impunity and a complete disregard for the rule of law and all its positive implications.

Now, though, China has a new President in Xi Jinping. Will things change? Regrettably for the ‘rule of law’ activists, it would seem not – just yesterday the New York Times reported how Chinese officials warned that China should steer clear of ‘dangerous’ Western values (6).  Chen Ziming, a prominent political commentator in Beijing who supports democratic change, has commented that there are ‘no notions of political reform’ in the current government. Why might those in power be so opposed? Ira Belkin claims that the ‘Maoist attitude to dissent is blocking… the road to the rule of law’ (5) – the way that ‘contradictions’ were dealt with by Mao involved forced labour to change the attitude of the contradictor or alternatively, elimination.

In my view, the actions of the Chinese authorities imply that they are of the opinion that introducing the ‘rule of law’ serves to undermine social stability – when, in actual fact, it can only serve to strengthen such stability. Why are critics that do no more than post their academic opinion on the internet receive such strong governmental punishment? Why does the government detain citizens without any apparent legal basis and without due process? Are such actions actually actionable violations of Chinese law – or is there something about the Chinese legal order that an outsider simply cannot understand? It seems to me that these questions are unanswerable – in my view, the Chinese should unequivocally adopt the rule of law as fully as possible – it might just be that it provides the social stability the nation is crying out for, free from corruption and discretionary punitive punishment.

 

Sources:

Books and journal articles:

1. Peerenboom, R., China’s Long March toward Rule of Law, (Cambridge University Press, 2002)

2. Riley, M., ‘On the rule of law and the role of courts in China’ I.C.C.L.R. 2005, 16(4), 151-156

Websites and newspaper publications:

3. http://dailystar.com.lb/Opinion/Commentary/2013/Feb-25/207776-a-consensus-emerges-in-china-that-the-rule-of-law-is-a-priority.ashx#axzz2THzl886t

4. http://articles.washingtonpost.com/2013-04-08/opinions/38385694_1_gao-zhisheng-house-arrest-rights

5. http://www.scmp.com/comment/insight-opinion/article/1209229/maoist-attitude-dissent-blocking-chinas-road-rule-law

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One Response to “China and the Rule of Law: Following in the Footsteps of the UK?”

  1. jpt1g11 May 15, 2013 at 11:23 pm #

    The role of the “rule of law” in Chinese politics has proved to be flexible when needed by the CCP in recent history. You are quite right in your assessment of it – the CCP has viewed it as something to undermine society and not reinforce the progress made as a nation.

    Perhaps this is one of the factors which marks China out as fundamentally different to countries that have a tradition of liberal democracy and human rights. This hasn’t been the focus for China over recent decades since economic development has taken precedence over pretty much everything in terms of political or social factors.

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