Article: Huffington Post “How Taking Down A “Big Tiger” Is Establishing the Rule of Law in China”

This piece is to be found at the Huffington Post who seem to be quite interested in China law issues at the moment


How Taking Down A “Big Tiger” Is Establishing the Rule of Law in China

SHANGHAI — The downfall of Zhou Yongkang, a “big tiger” top official who in the past would have been considered immune to corruption investigations, is of great practical significance. It sets a new milestone in China’s deepening anti-graft campaign.

What we should remember, however, is that as a former member of the Politburo Standing Committee of the Communist Party, Zhou had served as China’s political-legal helmsman for as long as a decade. How much money he and his connections had rendered is not a big concern. Instead, of most consequence is the harm resulting from his malfeasance in the political and legal fields during all those years. Over more than 10 years, Zhou polluted almost every part of the country’s political-legal realm. The effect of his actions has manifested itself in mechanisms and latent rules running against the requirements of the rule of law.

With this understanding, it is not enough to merely focus our efforts on an investigation into Zhou Yongkang’s corrupt, law-breaking and discipline-violating responsibilities or to take them just as individual cases. Instead, we should take this opportunity to reexamine and rectify his malfeasance in the context of the rule of law.

China’s anti-graft campaign, and the downfall of Zhou Yongkang and several other “big tigers,” has cleared the way for the rule of law, a topic to be discussed at the 4th Plenary Session of the 18th CPC Committee scheduled for October. That meeting will further open the prospects for China’s rule of law, including efforts to install anti-graft and clean-government systems and mechanisms.

On the eve of this important CPC meeting, China should try to understand the magnitude of the harm that took shape and gained new ground during Zhou Yongkang’s time. To paint a full picture of the irregularities associated with Zhou’s rule of the country’s political and legal field, I have classified them into six categories:

1. Giving personal comments and instructions on specific cases and intervention on specific cases and concluding cases before they are heard.

Leftover from the days before China’s reform and opening up drive, these malpractices kept happening during Zhou Yongkang’s time. In 1979, the CPC Central Committee issued its No 4 document, which called for the termination of these practices. In the amendment of the Constitution of 1999, in particular, it was stipulated that China would build socialism in accordance with law and turn itself into a country under the rule of law.

These measures helped redress the above mentioned malpractices to a noticeable extent. When Zhou ascended to the helm, the situation should have continued and been improved. But, it went the other way. He took the lead to give instructions on specific cases, overstepping laws and regulations. He also brought in non-judiciary departments and organs to “coordinate” cases and encouraged his juniors to follow his example, totally messing up the country’s judiciary system and operation in accordance with the constitution and other legal regulations.

2. Sabotaging of the lawyer system and sowing of tension and conflicts between lawyers and courts, procuratorates and public security departments

Not long before he took command of the country’s political and legal division, Zhou took the liberty to revise the definition of lawyers and their profession, driving a wedge between lawyers and courts, prosecutors and public security departments.

As clearly stipulated in the Act of Lawyers, lawyers are “law practitioners engaged or appointed to offer law services to parties concerned.” Zhou, however, changed it into “socialist legal workers with Chinese characteristics.” This change has, in fact, reverted the definition of lawyers and their profession to what it was in the late 1970s and early 1980s. At that time, all lawyers were officials working with judicial administrations, and their top obligation was to safeguard national interests, with legal services to clients coming in second.

As stipulated in the newly amended Act of Lawyers, lawyers should be employed by their client for legal services. What Zhou insisted, however, is that lawyers should take side with and serve courts, prosecutors and public security departments, purposely sowing the seed of conflict.

3. Creation of a lasting source of social turmoil by acquiescing in the erosion of extra-legal dispute settlement mechanisms such as petitions and complaints.

The petition and complaint settlement arrangement has played a very important role in redressing many cases of wrong, false and unjust cases during political campaigns, especially during the Cultural Revolution. It was, after all, an extraordinary measure that had to be taken during an extraordinary period, and as such should have been abolished when a democratic legal system began to develop.

This is why the term “petition and complaint handling arrangement” has never been written into any of the country’s laws or regulations. During Zhou’s reign of China’s political and law realm, however, this extra-legal mechanism kept gaining profile and even came to rival the country’s general judicial system, totally messing up the country’s dispute settlement mechanism.

While trying to disrupt the country’s judicial system with the petition and complaint settlement mechanism, Zhou obviously felt the subsequent pressure of a weakening of judicial roles and the loss of control by petitioners.

To deal with the situation, he masterminded a nation-wide campaign to suppress petitioners through non-judicial departments. This led to a flood of cases that infringed upon the fundamental rights of citizens. Many petitioners were put into private jails, illegally arrested, or forced to “travel for the purpose of maintaining social order.” Petitioners need to be protected and China should return to the normal judicial proceedings as a matter of course.

4. A smaller instead of bigger degree of freedom of the person, freedom of speech and freedom of the press.

Since China’s start of reform and opening up, Chinese citizens have seen a continuous improvement in their personal rights and freedom, with the exception of a fairly short period of time. During Zhou’s time, however, this situation reversed, with malpractice and even criminal behaviors such as extortion of confessions by torture flooding the petition and complaint handling sector, as well as fields devoted to reeducation through labor, removal of housing for construction projects, punishment of speech and so on.

Reeducation through labor, for instance, is a measure to strip citizens of personal freedom by administrative means for a long period of time. It does not meet even the minimum standard on the rule of law. After 1999, when the rule of law was first written into China’s constitution, reeducation through labor became even more unconstitutional. As the top executive of the legal sector, Zhou should have worked to abolish this unconstitutional mechanism. But he did not. Instead, he winked at some regions and local leaders maximizing its law-violating and human rights infringing effects, as in the case of Bo Xilai, former Party chief of Chongqing Municipality and Wang Lijun, former police chief of the municipality.

As for the forced removal of residents for new construction projects, it was just a measure of expropriating property. The popularization of this practice has a close bearing on the system of tax distribution and the land-based finance propped up by pertinent central government policies. It does not have any positive connection with Zhou Yongkang. Given the unprecedented violence, bloodiness and infringement upon human rights in this sector during the years when he took charge of the legal sector, however, Zhou should shoulder a major portion of the responsibilities. If Zhou had valued the constitution and acted in strict accordance with law, it would not have been so violent, so bloody, or so disrespectful of the basic rights of citizens.

To declare a person guilty for his speech was a practice popular during the Cultural Revolution, which could even result in the death sentence. Even after China’s start of the reform and opening up drive, this practice has not been given up. Some fundamental changes, however, have taken place. When Zhou came to rule the political and law realm, however, the situation began to deteriorate. Its ripples continue to spread even today.

To extort confessions by torture and to collect evidence by coercion are barbaric crime-investigating methods that violate human rights. They were rooted out in Western civilizations a long time ago and labeled as unlawful and criminal in our country. During Zhou’s 10-year reign of China’s political and legal realm, however, these barbaric and unlawful practices remained widespread and rampant in the judiciary sector. Even today, few cases of extortion of confession or collection of evidences through violence have ever been dealt with in strict accordance with law. Even when some cases have been brought to trial under some extremely special circumstances, few of the police involved have ever been sentenced.

5. Widespread and excessive loss of private assets and property rights due to the lack of protection rendered in accordance with the law.

During the days of revolution, the Communist Party of China led the poor in suppressing landlord tyrants, dividing up their land and taking possession of private capital in the name of a public-private partnership. That, however, was history.

When China started a drive to reform and open-up, it stipulated in its Constitution that it should follow the basic economic system in which the public ownership is dominant and diverse forms of ownership develop side by side. It also declared the constitutional protection of the existence and development of the private economy. It specifically stipulated in Article 13 of China’s Constitution (2004 edition) that “the lawful private properties of all citizens are inviolable,” and that “the State protects the private properties of citizens and their right of inheritance in accordance with law.”

Strangely enough, however, Zhou Yongkang turned a blind eye to these constitutional stipulations and introduced in his realm another set of judiciary policies running counter to the Constitution and allowing relentless deprivation of the property rights of private enterprises and private businesspeople.

The so-called gang crackdown masterminded by Bo Xilai and Wang Lijun in Chongqing, for instance, was actually targeted at private businesses. Without going through any legal procedures, they simply deprived these businesses of their properties and property rights through confiscation, auction or trusteeship, propped up by Zhou’s policies.

6. Disorder of the country’s legal system due to attempts to control society by the will of a leader instead of law and placing “social stability” before a strict implementation of the law.

Exercise of social control through legislative, executive and judiciary means is the cornerstone of the rule of law, but it is a goal that is not so easy to achieve. It calls for all citizens, and the rulers in particular, to respect, understand, abide by and execute law. It also calls for the creation of a legal order through the strict enforcement of law.

The basic elements of the legal order include a willingness to see individuals fully exercise their rights and restrain them from all deeds forbidden by law, the full exercise of power by State organs in line with laws and regulations so as to guarantee citizens’ enjoyment of fundamental rights and punish law-breaking behaviors. It also entails the permission of individual citizens and public power executors to rationally interact with one another within the legal framework.

Efforts to maintain social stability, meanwhile, are aimed at bridging a superficial harmony between officials and ordinary citizens, between officials themselves, and between all individuals, and to give priority consideration to the will of leading officials. The genuine logic and true goal in the drive to maintain social stability is, therefore, to keep citizens from speaking or acting recklessly. According to this logic, to achieve this goal the current leaders may employ all kinds of resources, and even violate the constitution and other laws and regulations. This is ridiculous and conflicts with the principle of rule of law.

To carry its anti-graft campaign to an even greater depth and consolidate the results achieved so far, and to keep corruption at the minimum, China must take the path of rule of law.

To take this road, it has to set things right in the six sectors mentioned above. This will be a task of great difficulty, and cannot be fulfilled just through the brainstorming of a few people or the occasional promulgation of some documents.

The first and foremost condition for its completion is to free our mind, create opportunities for airing views, review the lessons in the judiciary field over the recent decade, and bring officials and the general public to achieve, through full interaction, some common understanding about reforms.

This piece also appears in China U.S. Focus