Legal Reform in China: An Empty Ritual

The sensational trial of former Chongqing party secretary and Politburo member Bo Xilai—and growing speculation that former member of the Politburo Standing Committee (PBSC) member Zhou Yongkang may be under investigation for corruption-related offences—has focused the world’s attention on Chinese-style rule of law. While senior cadres claimed that substantial improvements have been made to the transparency and fairness of the law-enforcement and judicial system, there is little reason to believe that the Chinese Communist Party (CCP) administration is willing to allow due process to trump political expediency.

Beijing has touted the trial of the 64-year-old Bo last month as evidence of improvements in government transparency in general and the rule of law in particular. “The Bo trial underscores China’s resolve for rule of law,” Xinhua News Agency wrote in a commentary after the five-day court event. “With the detailed proceedings microblogged live, the trial was a direct and strong response to reports that have been bashing China’s political and legal systems,” Xinhua noted. Guangming Daily claimed that the Bo trial had showcased “a judicial system that is under the sunshine.” “The new central leadership collective is self-consciously [implementing] rule of law and anti-corruption measures,” the official paper said. “The authorities are using the mentality of rule of law and methods [consistent with] rule of law to fight corruption,” added the People’s Daily (Xinhua, August 28; People’s Daily, August 26; Guangming Daily, August 24).

Zhou Qiang, the new President of the Supreme People’s Court, has made repeated efforts to raise the low esteem with which the Chinese judiciary is held inside and outside of China. “Transparency is our general principle—and non-transparency an exception,” Zhou said at a conference of senior judges in July. He added that the courts would uphold the law with the utmost vigor and that judicial fairness would be safeguarded. “We must ensure that every case is judged well, and particular attention will be given to complex, controversial and sensitive cases,” he indicated. “Even if the courts come out with only one misjudgment out of 10,000 cases, this will result in 100 percent injustice for the people involved,” he added (People’s Daily, July 5; Xinhua July 5).

Equally significant was the pledge made by the Politburo member in charge of the Central Political-Legal Commission (CPLC), Meng Jianzhu, that his powerful organ would not interfere with judicial procedures. The CPLC is in charge of the nation’s police, prosecutor’s offices and courts. At a nationwide meeting of law-enforcement officials held earlier this year, Meng, a former Minister of Public Security, pledged that the CPLC would not interfere with individual cases, and that procuratorial and judicial units would be given full independence in enforcing the law. “China is a big country with 1.3 billion people,” Meng pointed out. “The most fundamental guarantee of clean governance, social equality and stability is the rule of law” (Southern Metropolitan News, July 14; Sina.com, July 14).

Even more noteworthy were the statements made by President Xi Jinping about the rule of law with Chinese characteristics. Xi has on at least two occasions after becoming party chief at the 18th CCP Congress last November underscored the imperative of upholding the Constitution and the law. “We must seriously implement the law,” he said at a Politburo meeting devoted to legal and judicial issues. “There must be a fair judicial system, and all citizens must abide by the law.” He noted that “all organizations and individuals must conduct themselves within the parameters of the law.” And in a late 2012 speech marking the 30th anniversary of the promulgation of the 1982 Constitution, Xi said that “no organization or individuals has the special privilege of overriding the Constitution and the law,” “All actions that run counter to the Constitution and the law must be held to account,” he added (Xinhua, February 24; China News Service, December 4, 2012).

A closer examination of Xi’s statements, however, shows that he is hardly an advocate of decoupling law from politics. While taking about the Constitution, Xi stressed that “safeguarding the authority of the Constitution means safeguarding the authority of the joint will of the party and the people.” Following the long-standing principle that it is the party that provides guidance in formulating the Constitution and the law, Xi ended his talk on the Constitution by indicating that “we must insist upon the correct political orientation” and “we must insist upon the Party’s leadership” (Xinhua, December 4, 2012).

The apparent contradictions between Xi’s pledges about the supremacy of the Constitution and the law on the one hand, and the imperative of party leadership on the other, can be explained by the fact that it is made clear in the preamble of the Constitution that all Chinese should observe “the leadership of the CCP and the guidance of Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping Theory.” It is also a ritual for the party leadership to state its respect for the Constitution and the law on important occasions. In December 2002, former general secretary Hu Jintao also underscored his administration’s strict adherence to the Constitution on the 20th anniversary of the promulgation of the supreme charter (CCTV News, December 4, 2002; Xinhua, December 4, 2002). Despite Xi’s apparent conservatism, public protestations of respect for the law is deemed an essential element of his image building.    

That the Xi leadership may not translate its rhetoric into action is evident from the fact that major party mouthpieces have in the past few months run commentaries attacking the idea of xianzheng or “constitutionalism” as the term is usually understood in the West. For example, the theoretical journal Party Building (Dangjian) recently published an article claiming that “the goal of constitutionalism is to abolish the leadership of the Communist Party and to subvert the socialist administration.” Last month, the People’s Daily ran a commentary arguing that xianzheng was a propaganda tool whereby the United States sought to “globalize American liberal economics and legal system” (People’s Daily, August 5; Party Building, May 30). “Independence of the judiciary” is one of the seven “unmentionables” or taboo subjects that, according to an internal CCP document, should not be talked about in either the classroom or the media. (See “China’s Reform Summed Up: Politics, No; Economics, Yes (Sort of…),” China Brief, May 23).

Moreover, it is clear that the downfall of Bo—as well as his show trial—was the product of political intrigue rather than an exercise in Chinese-style rule of law, as the party’s CCP spin doctors have made it out to be. Bo, who harbored ambitions of making the PBSC at the 18th Party Congress, lost a power struggle with ex-President Hu Jintao and ex-premier Wen Jiabao. He also ran afoul of then-vice-president Xi, who feared that Bo was after his job. Given the fact that Bo, the son of revered party elder Bo Yibo, enjoyed the support of party elders such as Jiang Zemin, however, the Xi administration took special care in handling his case. Thus Bo was only accused of corruption and embezzlement amounting to 26 million yuan. These ill-gotten gains were mostly provided by two businessmen—Xu Ming and Tang Xiaolin—who first got to know Bo when he was mayor of Dalian in the 1990s. The authorities chose to ignore the huge funds that Bo and his cronies allegedly confiscated from Chongqing businessmen who were arrested and tortured over dubious charges of being mafia bosses (Ming Pao, August 22; Wen Wei Po, August 22; South China Morning Post, August 21).

The way the Bo trial was conducted seems to fit a long-standing but unpublicized convention within the CCP: that serving and former Politburo members would not get a jail term of more than 20 years irrespective of the severity of their felonies. The two previous Politburo members who were incriminated after the Cultural Revolution, former Beijing party secretary Chen Xitong and former Shanghai party boss Chen Liangyu, were jailed for 16 and 18 years, respectively (Ta Kung Pao, August 22; Asian Wall Street Journal, August 20). And despite the availability of a live microblog feed, the five-day court proceedings were less transparent than official media made it out to be. For example, sensitive statements made by Bo—that he did not covet the position of prime minister and did not aspire to be “China’s Putin”—were not released to the public (Apple Daily September 30; Hong Kong Economic Journal, September 30).

How about the rumored investigations of former PBSC member Zhou, who was party secretary of Sichuan Province and general manager of China National Petroleum Corporation (CNPC) before becoming Meng’s predecessor as CPLC Secretary in 2007? Zhou has not appeared in public since the 18th Party Congress. Moreover, two of his cronies in Sichuan—former deputy party secretary Li Chuncheng and former vice-governor Guo Yongxiang—have been detained for alleged economic crimes. And five CNPC executives including former chairman Jiang Jiemin, who is regarded as a Zhou protégé—came under investigation for “serious disciplinary violations” last month (Caixin.com September 1; South China Morning Post, September 1). Yet whether Zhou will eventually be prosecuted appears to hinge on political—not legal or judicial—considerations. There is a well-understood “mutual protection clause” for China’s most powerful politicians;  serving and former PBSC members are not subject to criminal prosecution (Ming Pao, September 3; Hong Kong Economic Journal, September 2; Reuters, September 2).

The dominance of politics over the due process of the law is also evidenced by the large number of lawyers—especially rights-defense lawyers—who have been detained and prosecuted in the past year. Since the spring, at least 100 lawyers and NGO activists have been harassed or arrested for reasons ranging from publicly supporting “constitutionalism” to defending dissidents. And even as Beijing claims that it is using legal means to crack down on graft, police have arrested at least 20 lawyers and bloggers who have exposed the corrupt practices of senior cadres. These include prominent attorney and lecturer Xu Zhiyong as well as members of the New Citizens’ Movement, which has called upon Beijing to enact a “sunshine regulation” obliging senior officials to publicize their assets as well as those of their close kin (Christian Science Monitor, July 17; VOA Chinese Service, August 8; China Human Rights Defenders website, August 4).

Apart from the traditional issue of the party dominating law-enforcement processes, the judiciary has suffered from the dearth of qualified professional judges. While the current President of the Supreme People’s Court Zhou has a master’s degree from the well-regarded Southwestern University of Law and Politics, his predecessor Wang Shengjun was a career police officer who lacks any law credentials. (China Daily, July 5; South China Morning Post, April 4). The professional aptitude of many regional-level judges appears questionable. Among the presidents of the people’s high courts of China’s 31 major administrative districts, only 11 have degrees from law schools. 13 top regional judges boast diplomas from party schools of different levels—but not degrees from fully-fledged universities. Only one of them, Ma Xinfeng, the female President of the Fujian People’s High Court, is a lawyer. In terms of professional background, only ten have risen through the ranks of the judiciary. Two used to work in the procuratorate, two in the political-legal commissions and three are former police officers. The other top local judges come from a variety of backgrounds. For example, four are former cadres in regional-level party or government departments, four were specialists in “work with the masses”, and two were senior staff in the railway system (Ta Kung Pao, August 14; Chinacourt.org, February 2).

Even more debilitating an embarrassment to China’s judicial system is the venality and apparent immoral lifestyle of many judges. One of the most sensational news stories of the year was that four senior judges of the Shanghai People’s High Court, including Chen Xueming and Zhao Minghua, respectively Chief Judge and Deputy Chief Judge at the city’s No. 1 Civil Tribunal, were fired for “serious disciplinary violations” after local businessman Ni Peiguo, who thinks he was a victim of a misjudgment in the Shanghai courts, posted videos of the four cavorting with prostitutes in a local hotel. More reports on the Internet indicated that the four had also amassed huge assets through illegal means (People’s Daily, August 9; Ifeng.com, August 4). Less than a month after this episode, Cui Yadong, the acting President of the Shanghai People’s High People’s Court was accused of assorted economic crimes when he was Head of the Police Department of Guizhou Province from 2008 until early 2013. Seventy of his subordinates in the Guizhou police force posted an Internet petition accusing Cui of misdemeanors, including embezzling more than 30 tonnes of expensive Mao Tai liquor during his tenure in the province (Radio Free Asia, August 16; Apple Daily, August 16).

According to President Xi, “running the country according to law” and a fair judicial system are integral to the realization of the “China Dream.” As the Procuratorial Daily pointed out in a recent commentary, “a just legal and judicial system provides a strong guarantee [for the attainment] of the China dream. “We must expand democracy within the judicial system,” the official paper indicated. “We must push forward judicial transparency and raise the [professional] ability of the judiciary.” (Procuratorial Daily, May 14; Xinhua, March 17) Given that Xi has fulfilled to some extent his earlier pledge that “both tigers and flies” among corrupt cadres would be nabbed, the authority and power base of the president has been consolidated. The wide gulf between what the likes of Zhou Qiang, Meng Jianzhu and President Xi have promised in terms of legal and judicial liberalization and the harsh reality seems to suggest that what the Xi leadership is interested in is not reform itself but tighter control of the legal-political apparatus now that Zhou Yongkang and his cronies have been elbowed aside. There is after all a long tradition of a CCP faction on the ascendancy—in this case the Xi-led Politburo—getting rid of its opponents—in this instance Bo and Zhou—in the name of high-sounding principles such as social justice and judicial fairness.