By Zhiqiong June Wang, Western Sydney University
This is a follow-up paper for the 2016 SDN Encounter with Yu Keping.
Professor Yu Keping argues that the modernisation of Chinese governance requires the presence of five essential elements: institutionalisation, democratisation, rule of law, efficiency, and coordination. Among them, democracy and rule of law are the most important. In relation to rule of law, Professor Yu argues for a modern legal system that features the following:
- laws that embody the will of its nationals;
- a complete set of laws for all organisations, social groups and citizens, with all public powers authorised by law only;
- laws are reasonable and scientific, that is, good laws; and
- the Constitution and laws are the [sources] of the supreme authority in state governance
Professor Yu further argues that without social fairness, there will be no rule of law, and without public participation there will be no good governance. According to Professor Yu, many other essential elements of good governance, such as responsibility, accountability, transparency, clean government, and stability, rest upon the institution of rule of law.
While there is no consensus on the meaning of rule of law, for academics who treat it as a Western constitutional doctrine, rule of law must, at a minimum, limit the power of the government and members of ruling elites, and afford natural justice, fair trial, and impartiality to everyone who is accused of a wrongdoing or a crime.
China’s legal reform and moves towards the rule of law
China’s legal reform since the late 1970s has been principally driven by the needs for economic reform and the implementation of an open-door policy. The significant development of the Chinese legal system, especially the establishment of the commercial legal framework, is as remarkable as its rapid economic growth. Since the late 1980s, China has also made some major efforts to develop its constitutional and procedural law, aiming at gradually establishing a system that provides procedural justice.
The 1999 incorporation of ‘ruling the Country according to Law’ into the Constitution was a milestone in China’s move towards rule of law. However, the Party’s leadership position, vaguely stated in the Preamble of the Constitution, has proven to be a major challenge for the establishment of rule of law in China, above all in terms of holding the Party accountable in law. In 2011, the Chinese Government, in its White Paper, Socialist Legal System with Chinese Characteristics, declared that the legal system in China is “to reflect the will of Chinese people and that of the Communist Party of China”. Such an attitude sees the law and rule of law as a tool for the party, rather than as a guarantee for justice.
Anti-corruption and the rule of law
Professor Yu is right to link rule of law with notions of democracy and good governance. How China’s recent anti-corruption champion – the “shuanggui” – fits into these notions is, however, more problematic. It is pleasing to see that the anti-corruption campaigns have now become much wider in their reach and deeper in their strike, but it is extremely depressing to hear frequent reports of mistreatment, including torture, of officers under the investigation. The motivation and legality of ‘shuanggui’ as a Party disciplinary measure outside the judicial mechanism, are often questioned, and so they must be.
There are suggestions that by virtue of becoming a Party member, the person concerned has voluntarily abandoned certain rights under the constitution. This argument, however, has no legal basis under Chinese law. Due process under Chinese law provides, unambiguously, the principle of the presumption of innocence, access to legal counsel, time limit for the various stages of detention or arrest, rules on evidence, the right to know and the right to be heard, open trials, and most importantly, no deprivation of personal liberty without due process.
No one doubts the importance of anti-corruption efforts. It is even conceivable that “Shuanggui” might be used as an emergency mechanism in dealing with the epidemic of corruption. It is however difficult to understand why “Shuanggui” could not be brought into the formal legal system that also affords procedural justice by an impartial tribunal to any government officials and Party members accused of a wrongdoing or crime. If the anti-corruption campaigns are to uphold the rule of law, then the rule of law surely should ensure the basic protection and guarantees under the rule of law. “Shuanggui”, if it continues to operate in secret without judicial oversight, will not lead to better government. It can only undermine the rule of law. It creates fear, not order.
Some years ago, there was a popular saying in China: “if you carry out anti-corruption campaigns, you will destroy the Party; and if you don’t do so you will destroy the State”. Evidently, after some years of such campaigns, both the Party and the State still stand. So, according to the same logic, perhaps a genuine support for the rule of law and the imposition of checks and balances may not destroy the Party after all, and they surely will not finish the State.
The Communist Party of China in 2014 decided to “comprehensively promote rule of law”. This was 15 years after ‘ruling the Country according to Law’ was incorporated into the Chinese Constitution. Yet, the “shuanggui” has since then been much more extensively and intensively used. We have heard enough “talk the talk” on the rule of law in China. Perhaps we should expect some “walk the walk”, through the establishment of checks and balances that are essential for China’s stability and, perhaps, also its future.