Rule of law – with Chinese characteristics

china rule of lawChinese authorities have detained former State Security Minister Zhou Yongkang on corruption charges and seized $14.5 billion in assets from the minister’s family and members of his inner circle, VOA reports.

“The Ministry of State Security, China’s internal intelligence agency, has been the recipient of huge amounts of money and political support,” said analyst Kerry Brown of the London-based Chatham House think tank. “The MSS, under the control of Zhou Yongkang, became a law unto itself. The MSS has had very little accountability.”

“As with other institutions affected by the anti-corruption purge,” Brown said, “the [leadership’s] strategy has been to take one or two individuals and to make an example of them. In this case, it has been Ma Jian…This is a sign that for the current anti-corruption campaign, no organization or entity is off bounds. The same goes for the military.”

The regime’s approach to rule of law illustrates that China’s elite wants democracy without the demos, says Columbia University’s Andrew Nathan, a board member of the National Endowment for Democracy.

Chinese human rights lawyer Pu Zhiqiang talks to media in BeijingThe Chinese judicial system’s failure to release three high-profile key activists detained in recent months – public intellectual Guo Yushan, lawyer Pu Zhiqiang (right), and legal activist Guo Feixiong – reflects progressively harsher suppression of civil society, says Human Rights Watch:

There is no publicly available credible evidence of illegal behavior in any of their cases, yet all three are likely to advance in the coming weeks as judicial personnel handle these cases with instructions from Communist Party authorities. Over the past decade, the three have been at the forefront of China’s human rights movement, pushing officials for greater adherence to the law and devising new methods to advance their cause:

Guo Yushan, 38, founded two influential organizations in Beijing: the legal aid NGO Gongmeng in 2004, and a public policy think tank, the Transition Institute, in 2007. ….;

Pu Zhiqiang, 50, forged a unique path as a lawyer defending many sensitive and prominent free speech cases, including that of Ai Weiwei…. and

Guo Feixiong, 48, is best known for his work in 2005 aiding villagers in Taishi, Guangdong province, as they sought to remove the allegedly corrupt village leader from office. …..

“Under Xi Jinping’s leadership, the crackdown on dissent has netted some of China’s most respected critics known for their innovative activism developing the rule of law,” said Sophie Richardson, China director. “Prosecuting and imprisoning these well-established public figures indicates near-zero tolerance for independent activism.”

China analyst Nigel Inkster of the London-based International Institute for Strategic Studies said Xi’s corruption purge may be on shaky legal footing.

“So far things seem to be going Xi’s way,” he told VOA. “But he has gambled a lot on the success of this campaign which, however, suffers from the fact that it is not being pursued within a framework of rule of law…This may well be the hurdle at which it falls.”        

“The question remains to be whether Xi is taking a page from Chairman Mao,” said longtime political analyst Willy Lam with the Chinese University of Hong Kong, noting the three fallen leaders were all considered to be Xi’s political opponents. “Starting with Mao, corruption has been used to take down enemies of the more powerful faction,” he told CNN.

The Financial Times’ David Pilling and Julie Zhu report on arguments in Hong Kong over the term “rule of law.” Mainland officials such as ambassador Cui Tiankai have pushed an interpretation of the phrase which emphasizes public obedience, notes China Digital Times:

….as former Central Party School researcher Wang Guixiu told the South China Morning Post last year, “the public say it is about putting officials in check, while officials say it is about how to govern the public.” Prominent figures in Hong Kong’s legal community have recently urged its government to acknowledge its own obligations under rule of law as well as the public’s..[Source]

Read more from Stuart Lau at South China Morning Post.

At China Media Project, meanwhile, Qian Gang writes that an apparent “death sentence” on the phrase “judicial independence” presents “a worrying signal for rule of law” in China.

RTWT

Shawshank Redemption for China’s rule of law

china wealth and powerChina’s propaganda officials are marking the first Constitution Day by screening movies, including “The Shawshank Redemption” and “Training Day” to highlight corruption, China Digital Times reports.

December 4th is China’s first official Constitution Day, a new holiday conceived at October’s rule-of-law-themed Fourth Party Plenum. State media hailed the occasion as a demonstration of China’s commitment to rule of law:

The regime concedes that obedience to the constitution is not yet universal, but officials in Shanghai were keen to emphasize that nobody’s perfect:

In Shanghai, propaganda officials are marking the first Constitution Day by screening movies, including “The Shawshank Redemption” and “Training Day” which depict corruption in the U.S. law enforcement systems, at a film festival to promote better awareness of the 32-year-old charter.

[…] While celebrating the constitution may be intended to bolster the legitimacy of China’s leadership, it could increase the challenge the leaders face in the future, according to Jerome Cohen, a professor of law at New York University who specializes in Chinese law.

“Chinese are highly intelligent people who will increasingly note the contrast between the promises in the Constitution and the realities of daily life,” he said. [Source]

China: rule of law v party rule

china rule of lawChina’s Communist leaders promised legal reforms on Thursday that could give judges more independence from interference by local officials but will leave the party essentially above the law, the Washington Post’s Simon Denyer reports:

After a four-day closed-door session, the party’s elite Central Committee pledged to promote “the socialist rule of law with Chinese characteristics.” Far from a Western notion of the separation of powers, the communique made it clear the Communist Party remained the ultimate authority in the country, and talk of reform seemed largely aimed at improving local governance and calming rising social unrest.

 “This is something that has to be done if the party wants to maintain legitimacy, because legitimacy is not just made by abstract concepts and buzzwords,” said Flora Sapio, an assistant professor at the Chinese University of Hong Kong who studies China’s legal system. “You have to deliver something to the people,” she told the New York Times:

But she and other legal experts noted that Mr. Xi had no interest in creating a judiciary that could rule against the party’s policies and interests, particularly in cases that are politically delicate or that could lead to social unrest.

china teng biaoHence the government’s talk of “rule of law” is “like a rooster dreaming that he can lay eggs,” Teng Biao (left), a prominent rights lawyer, wrote this week in Oriental Daily News, a Hong Kong website.

“The basic political system is incompatible with rule of law,” he said in an interview from Cambridge, Mass., where he is a visiting scholar at Harvard University. “They mainly want to use the law to control society and control the public.”

In a country where the notion that the ruling elite should be restrained by law has never held sway, few expect the party to allow a truly independent judiciary, the Wall Street Journal reports:

“They need a strong judiciary to capture, or to resolve, all the disputes on the streets,” said Fu Hualing, a professor of law at Hong Kong University. “Basically, you’re creating a sphere of autonomy over which you don’t have total control in the end. That’s the sacrifice.”

In past plenums, the party has often followed up initial statements with more details in a broader policy paper a week or so later. For now, Thursday’s communiqué offered few clues as to the party’s seriousness about moving beyond paying lip service to rule of law.

“I was looking for a bit more,” Mr. Fu said. “It’s pretty dry—there’s not much you can squeeze out of it.”

Party divisions

“What we really need is to incorporate the idea of ‘governing the country by law’ into every aspect of our governance and we need to modernise the entire method of governing,” said Lin Zhe, a professor specialising in anti-corruption at China’s top training academy for senior party officials. “We no longer want rule by individuals and their whims, which we have relied on heavily in the past,” Lin told the FT:

china cpcongress clbYesterday, the party said it would establish a mechanism in which individual officials will be given demerits or “criticised in public notices” if they are found to have interfered in judicial cases.

How this will be applied in practice is unclear, since there was no indication from the meeting that the party intended to reduce its decision-making power in cases officials decide are “political” or “sensitive”.

Mr Xi and other leaders have previously derided and ruled out “constitutionalism” for China but the communiqué yesterday said China “should be ruled in line with the constitution”.

Several reports, however, note that the plenum did not discuss the fate of China’s former domestic security chief Zhou Yongkang who is also being probed for corruption, the BBC adds:

Analysts tell Hong Kong’s South China Morning Post that the “lack of action on Zhou Yongkang suggests party divisions”. According to Hong Kong-based political commentator Johnny Lau Yui-siu, reforms by President Xi Jinping are facing “strong resistance” within the party.

A commentary in the Haiwai Net also observes that no mention was made at the meeting of top military official Xu Caihou who has been accused of accepting bribes.

“Mr Zhou and Mr Xu are at the centre of the corruption theme, yet there wasn’t much discussion about them during the meeting,” says the article. Nevertheless, it adds that the anti-corruption effort of the current leadership has won much praise and dismisses allegations of “power struggles” within the party.

 

 

 

 

China’s rule of law pledge rings hollow

chinacongressBeijing’s promises of progress toward rule of law ring hollow in light of the recently announced investigation of former security chief Zhou Yongkang, legal scholar Jerome Cohen writes for South China Morning Post:

Party leaders and their legal advisers have been struggling with the problem of how to achieve the rule of law for many years. Now, they claim, the fourth plenum will “provide a road map” that will “flesh out” the goals set forth in the decision so that, as the former director of research at the Supreme People’s Court recently stated, “you can both ‘see and feel’ the rule of law”.

[…] Many people inside and outside China, however, understand the Zhou case as an immediate, living refutation of the rule of law principles that the party is currently touting to the country and the world. If indeed there is now “equal justice”, they ask, why is it that many other leaders suspected of corrupt relations are also not being subjected to confinement and investigation in accordance with the party’s frightening shuanggui procedures? How can those disciplinary inspection procedures – the customary prerequisite to criminal prosecution of party members – possibly be consistent with the constitution and the Criminal Procedure Law? [As Donald Clarke has noted, shuanggui has no legal foundation—perhaps deliberately.]

[…] Of course, it must be said that these are extraordinary political cases and cannot be taken as representative of the normal administration of justice. But if violations of China’s constitution and the laws take place in such prominent cases, we can imagine the extent of violations in less visible ones. [Source]

Read more on the Zhou case’s implications for rule of law and on judicial reforms unveiled ahead of the plenum via China Digital Times.

Promoting Human Rights and Rule of Law in Yemen

The Bureau of Democracy, Human Rights, and Labor (DRL) seeks proposals to support Yemeni civil society efforts to promote human rights and increase transparency and accountability in the criminal justice system. Activities may include, but are not limited to:

• Advocacy for legal and regulatory reforms to bolster protection of human rights and human rights defenders, including increasing transparency in the criminal justice process;

• Training for NGOs to track cases in the criminal justice system to ensure that the right to due process is respected;

• Legal assistance for recourse for human rights violations;

• Exploration of the intersections between informal, traditional, and formal justice mechanisms.

Partnership with local organizations is strongly encouraged. Although small in scale, successful applications will detail how activities can be adaptable and scalable should additional funding become available. The program should provide capacity building, coaching, networking, and other support to partner Yemeni CSOs, where appropriate. Successful proposals will address how program activities will bolster the protection of the rights of women, youth, and other marginalized communities.

Further details here.