How to Square Xi's 'Rule of Law' Campaign With China's Crackdown on Lawyers

02/16/2016 02:32 pm ET | Updated Feb 16, 2016

SINGAPORE -- At its fourth plenary session of the 18th congress in October 2014, the Chinese Communist Party leadership passed an ambitious reform plan on the legal system. The party devoted this entire plenary session to discuss "rule of law" -- something unprecedented in the history of the party's plenary sessions. This act was widely interpreted as the Xi Jinping leadership's determination to build a system of "rule of law" in the country.

Indeed, Beijing's reform initiatives are part of a long-term endeavor to build a system of "rule of law" since the late Deng Xiaoping. When the victims of the lawless Cultural Revolution, such as Deng Xiaoping and Peng Zhen, became the party's senior leaders in the late 1970s they believed that without laws, both the ruler and the ruled could not be protected from the arbitrary behavior of individual leaders. With their efforts, concepts such as "equality before the law," "the supremacy of the law," "the rule-of-law-state" and "judicial independence" began to appear in the party's official documents, became popular in the discourse of legal development and produced profound and lasting impact on Chinese society over the years. In 1997, pushed very hard by the reformist leader Qiao Shi, "rule of law" was formally written into the party congress document at the 15th Party Congress.

Xi now wants to make it the party's top priority.

However, there is a big gap between ideal and reality. Less than one year after the party invoked the building of the "rule of law," 317 human rights lawyers, activists and their family members in China were reportedly detained and investigated in what has been dubbed the "709 crackdown" by the media in the West. Since July 2015, and several attorneys have been formally arrested on suspicion of subverting state power in January 2016. In addition, a new draft law bars any Chinese NGO from receiving foreign funding and calls for NGOs to act in accordance with the Chinese law. The move to clamp down on NGOs raised concerns as charity workers fear their work being intensely curtailed in China.

There is a big gap between ideal and reality. Less than one year after the party invoked the building of the 'rule of law,' 317 human rights lawyers, activists and their family members in China were reportedly detained.

While state media Xinhua reported in July 2015 that the crackdown of lawyers, social media celebrities and petitioners alike are due to their alleged action of "disrupting public order and seeking profits by illegally organizing paid protests and swaying court decisions in the name of 'defending justice and public interests,'" the media in the West framed it as an effort of the authority to crack down on dissent.

As many as 38 lawyers and activists from the Fengrui law firm in Beijing have been detained in the "709 crackdown." Among those who are arrested on subversion charge, the arrests of Fengrui's director, Zhou Shifeng and human rights lawyer, Wang Yu have attracted high international attention and triggered criticism from the West. Zhou once handled the controversial "Three Deer" poisoned milk powder case and represented the Hong Kong protestor Zhang Miao. Wang was involved in several high profile cases. She represented ethnic Uighur dissident Ilham Tohti and worked on religious, land rights, forced eviction and petition cases.

Some observers in the West thus regard the CCP as adopting the Maoist political approaches and viewed its leader Xi Jinping as the "authoritarian reformer," who tries to utilize multiple means, including reform, to amass an enormous amount of power in his own hands. Some even opined that "China's crackdown on civil society is driven partly by Xi's obsession with control but also by fear that foreigners are secretly plotting to overthrow China's one-party state."

Apparently, different parties have their versions of the story and the media can choose which to believe and which to blame. However, the gap between reality and ideal pertaining to China's rule of law needs to be and can be explained objectively.

The History of China's 'Rule by Law' Concept

First, China's legal reform is constrained greatly by its historical and cultural past. Ancient China's legal system was characterized as the "Rule of Man" or "Rule by Law" because it was designed for the emperor/ruler to ensure that decrees were faithfully implemented by government officials. The emperor was regarded as the "Son of Heaven" and rules "all under heaven." The emperor was not subject to legal restrictions and legalism served as a tool for government efficiency. Furthermore, courts were simply another division of the state bureaucracy and there was no separation between the judiciary and the state. China never developed an independent judiciary as did its counterparts in the West.

The Chinese Communist Party today inherits the legacy of the past and acts like an "organizational emperor." The CCP as the organizational emperor connotes that the party is the personification of a modern emperor, in which the party dominates over the state, and the party and state dominate over the society. There are different "technologies of power" by which the CCP exercises in relation to the state and society such as coercion, bargaining and reciprocity. In order to maintain the party's supremacy, assimilation of different elements and adoption of diversifying concepts through negotiation and persuasion are plausible. In order to maintain the legitimacy that enables it to remain in power the party responsively adapts to social demands from cleaning up the environment to cracking down on corruption. In this sense, its hegemony is "inclusive." But there are red lines that can't be crossed. While contradictions within the party are acceptable, any actions or mobilization that challenge the narrative of party rule will be deemed as subversive and unforgivable, which leads to coercion.

China never developed an independent judiciary as did its counterparts in the West.

In this sense, the CCP's crackdown on high-profile attorneys and NGOs resembles the mechanism in Chinese ancient legalism, embedded in and employed by the CCP, to choke off sources of potential dissent. It is aimed at guaranteeing the party's domination over society, and strengthening the organizational emperorship.

Second, China's legal reform still suffers profoundly by Mao's legacy. During the Cultural Revolution (1966-1976), the legal system was severely impaired and abandoned. Law schools were shut down and the legal profession came to a near obliteration during the 1960s. Efforts to rebuild the judiciary and legal profession were resumed after Deng Xiaoping came to power in the late 1970s and early 1980s, but the leadership faced a big problem in recruiting human capital and establishing legal professions.

The adversarial relationship between judges, who represent the party, and legal professions, who represent the people and fight for individual right, leads to conflicting interests and results in collision.

Prior to the 1995 Judges' Law, the admission and legal training of China's judges and procurators were less stringent. There were no requirements to be a judge except that one had to be a cadre. In the 1980s and 1990s, a large number of demobilized army soldiers with little formal legal background entered into courts. Party cadres from government institutions, usually public security, or party organs, such as the Political-Legal Committee, have also been recruited as judges. While judges tend to develop a close connection with the party, the CCP exerts deep influence in the areas of ideology, decision-making and personnel matters.

In contrast to judges, lawyers and attorneys undertake a duty to represent his (her) individual clients. In the 1980s, professional services were in high demand to facilitate economic reform. Legal expertise was much in demand in this period. Trained professionals were equipped with critical reasoning and analytical skills to practice law through better and formal legal training and education. Following the promulgation of Lawyer Law in 1996, not only legal education has improved; lawyers and legal expertise have gained greater independence and autonomy and were redefined in a "less politically charged way."

When legal practitioners leave the court and go onto the street, resorting to politically sensitive activities, they step on the bottom line of the party.

Having received formal education in the legal system and equipped with Western legal philosophies and ideas, the legal community was instilled with zealous passion and consciousness on liberal democracy. Lawyers and attorneys often go beyond their legal profession to advocate the virtues of democracy, individual right and rule of law, aiming to gradually influence China's legal culture and push forward its legal reform. The adversarial relationship between judges, who represent the party, and legal professions, who represent the people and fight for individual right, leads to conflicting interests and results in collision.

Often, because of undue party interference on the judiciary system, judges who wear two hats resort to political means to deal with legal practitioners. Lawyers who are incapacitated in court thus often resort to championing social mobilization as an effective method to win appeals and litigation. However, when legal practitioners leave the court and go onto the street, resorting to politically sensitive activities, they step on the bottom line of the party and could be charged in suspicion of "subversion of state power" as exemplified in the recent "709 crackdown." "Politicalization" is now a widespread phenomenon in China's legal community. Once legal practitioners leave the court and go on street, they are doomed to be the losers since, at this point, they have transformed a legal battle into a political one.

China's relationship between the state and NGOs has been in a similar dilemma. During China's modernization process, Chinese society has undergone remarkable changes, spurring the development of NGOs. However, the relationship between NGOs and the state has yet to be institutionalized.

Independent Civil Society?

According to the New York Times, China's independent civil society groups have "...long struggled to survive inside China's ill-defined, shifting margins of official tolerance." While NGOs which help reduce poverty, raise awareness on environmental issue or provide medical care have more room in China, any religion or human rights related NGOs face hurdles in either gaining approval from the authority or raising fund from the local community. In order to operate, some NGOs solicit financial support from overseas. Beijing, however, has become increasingly concerned with so-called "foreign donations," fearing that NGOs could be a subversive tool of external parties to topple the Chinese government. Given the fact that international NGOs have likely played a role in various "color revolutions" in different parts of the world, Beijing's concern is not without any reason.

Despite all these difficulties, the party leadership is determined to build a system of "rule of law." A series of concrete initiatives have been unveiled under Xi Jinping's reform plan on the legal system.

First, Beijing is set to establish "circuit courts" and "cross-regional judicial bodies" to sever the connection between judges and local political interests. This is to weaken what in China is called "legal localism."

Unlike the U.S., China does not have its own legal bodies in different localities. Judges are appointed and paid for by local governments and thus subject to local interference. These new measures are expected to "free" judges from local government.

Beijing's current reform initiatives and conviction in building the rule of law are not just a kind of window dressing.

Second, and more importantly, political interventions in legal affairs by party cadres and government officials at different levels will be recorded and all consequences deriving from their intervention will be borne by them during their lifetime.

Third, professionalism will be promoted in the judicial system. All judges must be either law graduates or law professionals who start their career from basic-level courts before working their way up based on performance and ability.

After more than three decades of development, China's legal system has been significantly improved. But the country is still on the cusp of cultural, political and personnel dilemmas. This might be an inevitable transitional phenomenon as China is experiencing huge transformations and reforms.

Beijing's current reform initiatives and conviction in building the "rule of law" are not just a kind of window dressing; they reflect the leadership's awareness of its need to improve governance, address widespread public grievances and respond to public opinion. Indeed, the current reforms are widely expected to introduce radical improvements in the judicial system. The party leadership is fully aware that if it fails to establish a system of rule of law as planned, it will be incapacitated in governing an increasingly complicated society. It took the West a few centuries to build its system of rule of law, it will take China even longer time to finish its long march to "rule of law."

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