Lubman Writes For WSJ….”In Sharp Words From Xi, Ominous Implications for China’s Legal Reforms”

And yet again he’d be right…….

President Xi Jinping’s recent rhetoric on ruling the country according to law has cast a new shadow over legal reform in China.

Speaking of the courts and police in a meeting last month, Xi revived a vivid image from the Communist Party’s ideological vocabulary about the role of law, stating that the party must ensure “the handle of the knife is firmly in the hands of the party and the people.” Xi’s invocation of a menacing slogan ratcheted up the volume on a growing chorus of arguments that are being used to distance Chinese law from law in Western democracies.


Ominously, the metaphor is not new.  It can be traced back to Mao Zedong, who coined it long before the People’s Republic of China was established. In the Maoist era the “knife” expression was used to refer to the police and courts as a weapon against enemies of the revolution, but, as Foreign Policy notes, “it fell into disuse after China implemented economic reforms in the late 1970s.” President Xi’s use of the image further underlines the Party’s aggressive hostility to judicial independence and separation of powers.

The Chinese Communist Party’s campaign against “political perils” and “Western ideas” has grown more intense, and threatens not only to impede the progress of law reform in attacking “constitutionalism,” but also to expose the emptiness of the crude slogans that currently proclaim Chinese ideology.  In another step backward into China’s closed past, last month the Minister of Education warned against the “infiltration” of Western ideas, including the use of textbooks that “disseminate Western values.”

This latest language echoes “Document No.9,” an internal party memo issued in September 2013 before the Party’s Third Plenum, which named seven political perils, with “Western constitutional democracy” topping the list. Under this heading, the document identified “the separation of powers, the multi-party system, general elections, [and] independent judiciaries.”  It claimed that opponents of party dominance wanted to “undermine the Party’s leadership” and bring Western political systems to China.

The appearance of Document No. 9 set off a debate that resulted in the censorship of several published defenses of constitutional governance.  Yet Chinese scholars and others have not been silent on the issues raised by the Party’s recent assault on “Western values.”

Shen Kui, a professor and vice dean at Beijing University’s Law School, has dismissed the campaign as a “ridiculous charade.”  Shen points out that Marxism, which the Chinese constitution states must be upheld, came from the West and that it is impossible to draw the line between Chinese values and Western values. He also argues that the campaign’s warnings about “attacking the Party’s leadership” imply, erroneously, that the Party does not make errors.  Finally, Shen reminds critics that the constitution relates to the “renaissance of the Chinese people,” and that “if you casually talk about what can and can’t be done, then the least bit of incaution could mean a violation of the constitution and the law.”

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President Xi’s “knife” metaphor stirred up liberal voices on the Chinese Internet.  One microblogger, quoted by Foreign Policy, wrote provocatively that “describing the police as a ‘knife’ means that they are not serving the people, but perpetuating a dictatorship with violence.”

Consistent with the Party’s insistence on its control over Chinese society, it has been pressing hard to silence dissidence and the public expression of unwelcome views, with a force unseen since the aftermath of the 1989 Tiananmen Square protests.  Control over the press and social media has been tightened. The Party has been prosecuting activists who advocate peaceful reform, and lawyers who defend accused activists have themselves been prosecuted.

Notably, outspoken libel attorney and Tiananmen Square veteran Pu Zhiqiang was detained in April on vague charges of “picking quarrels” after attending a small indoor meeting with other activists. Since then he has been formally arrested and indicted for “inciting racial hatred” through his outspoken online comments on a range of political issues.

A recent report that President Xi has ordered “governors and ministers to work much harder to implement  ‘rule by law’” may seem odd given the current environment — until you remember that what Xi calls “rule by law” is very different from what is known in the West as “rule of law.”  The Western concept means that law is the supreme standard by which governmental conduct is measured.  The Chinese concept is very different, as the report indicates:

The party made rule by law its priority at its fourth plenum in October, but stressed that its absolute leadership was at the core of the ideal.

In the current political atmosphere, some incremental law reforms may progress, within strict limits, by regularizing procedure in the courts and improving transparency in cases not deemed to be politically significant.  But the most recent message is chillingly clear: The grasp of the Party will not be loosened, and as a result, changes needed for deep reform of China’s legal system will remain out of reach.