This article was originally published in The Economist on July 26, 2013 under the title, "The Rule of Law: Bizarrely Consistent."
THOSE who see legal reform in China as a half-full glass point to encouraging signs of progress—including to some of the harshest and most easily abused features of the nation’s criminal code. Amendments adopted last year seek to prevent the coercion of false confessions. Legal scholars—and, more intriguingly, judicial officials—now openly discuss the need to reduce wrongful convictions. Meanwhile, use of the death penalty has declined dramatically over the past decade, with executions falling from roughly 12,000 in 2002 to 3,000 last year.
Yet when it comes to political agitators, China’s legal system is as harsh as ever. The past few days have seen a spate of incidents involving the harassment and detention of rights activists and advocates of the rule of law. On July 16th Xu Zhiyong, a noted Beijing law lecturer held under house arrest since April, was formally detained, reportedly under charges of “assembling a crowd to disrupt order in a public place”.
Mr Xu has had previous run-ins with the authorities, though working peacefully within the system when calling for officials to follow the law more carefully, and for citizens to have improved civil and political rights. His own lawyer, Liu Weiguo, was also taken into custody when trying to visit his client. Perhaps Mr Xu’s chief offence is to have argued for greater disclosure of officials’ personal assets. That this echoes the government’s own recent rhetoric has not been enough to keep him safe.
The crackdown, which extended to the closing of another group in the capital advocating the rule of law, has attracted criticism from human-rights organisations abroad, a call from the American government for Mr Xu’s release, and an open letter signed by hundreds of Chinese academics, journalists and business people. Beyond calling for Mr Xu’s release and the lifting of bans on internet and media discussion of his case, the letter says the government must “use the Xu Zhiyong case as a mirror” to reflect deeply on its policies and “create a tolerant and favourable environment for the healthy development of civil society”.
These events come even as the government continues its rhetoric about the importance of legal reform. Prompted by a series of widely publicised cases in which criminal convictions were conclusively found to be in error, officials have become increasingly open about the problem of wrongful convictions.
Much of the discussion focuses on criminal confessions coerced by police, whether through torture and abuse or through their untrammelled authority in pressing suspects. It marks a departure from past practice, when the police and legal system were held to be infallible. In May a senior official at the Supreme People’s Court, Shen Deyong, urged legal cadres “to be alert” to the problem. Many, he complained, “are still influenced by the presumption of a suspect’s guilt”.
According to Ira Belkin, who runs the US-Asia Law Institute at New York University, the seeming contradiction between a crackdown on activists and genuine moves towards reform is, in fact, “bizarrely consistent”. The key, he says, is the focus by the Communist Party on social stability—ie, not only the risk of social unrest, but of any challenge to its authority. Stability depends upon public trust in the legal system, which is likely to improve when wrongful convictions are stopped.
At the same time, Mr Belkin says, when the authorities identify people as troublemakers, “they show no mercy in order to deter them and others”. Mr Belkin’s own belief, though, is that greater tolerance of peaceful critics of government would contribute more to social stability than the usual hardline approach to dissent laid down by Mao Zedong. For now, at least, the government seems unwilling to put that idea to the test.