Jerome A Cohen. China’s Hollow ‘Rule of Law.' CNN

December 31, 2009

Two major criminal cases in one week — one resulting in an execution, the other a lengthy prison sentence — have focused new foreign attention on China’s judiciary. They are vivid reminders of the limits that China’s Communist Party-dominated legal system imposes on the government’s efforts to impress the world by its “soft power”: its political, cultural and economic influence.

Both the 11-year sentence a Chinese court delivered to democracy advocate Liu Xiaobo for “inciting subversion of state power” and the execution Tuesday of British national Akmal Shaikh for heroin smuggling make clear why the People’s Republic of China emphasizes that it has a “political-legal” system.

In both cases, the party denied the courts the independence to consider the defendants’ claims. And without judicial autonomy, there can be no genuine rule of law.

Liu had twice been severely punished for essays preaching the virtues of Western-style democracy. This time, on instruction from the party, the court ordered an unusually long sentence for his key role in drafting Charter 08, a historic, comprehensive manifesto for peacefully ending the party’s monopoly on power.

Initially signed by 300 prominent figures, it soon garnered thousands of signatures, despite official warnings. The trial court allowed Liu’s lawyers only the briefest opportunity to argue that he had been merely exercising the freedoms of expression enshrined inChina’sconstitution rather than illegally inciting overthrow of the government.

Shaikh’s case, by contrast, was a non-political criminal prosecution that became political when the court sentenced him to death without seeking psychiatric evaluation of his mental condition. This aroused extraordinary protest from the British government and Europeanhuman rights organizations, which claimed that the defendant had a long history of mental illness that, if professionally evaluated, would have barred his execution under Chinese law.

The party leadership, determined to demonstrate its resistance to foreign pressure and its zero-tolerance policy on drug-smuggling, ordered the courts to ignore what seemed a persuasive argument for examining a defendant’s mental condition.

Of course, every country’s legal system has to function within its political framework, but in China, to an unusual extent, “politics takes command,” as the slogan puts it, at least in the many types of cases the state regards as “politically sensitive.”

To be sure, every year, China’s courts handle millions of mundane civil and commercial disputes and over 700,000 non-political criminal prosecutions. And although many of the nation’s 200,000 judges — especially those staffing its more than 3,000 basic courts — still lack sufficient professional competence, legal education and training are booming and gradually raising standards.

Unfortunately, corruption is also making steady progress, and “guanxi,” the protean network of “back door” personal connections, too often distorts judicial decisions. Yet, in some cases, courts even grant satisfaction to aggrieved plaintiffs who bring lawsuits against local administrative officials, despite the fact that most judges, like most administrators, are Communist Party members.

Were it not for broad party control over the courts, they would compare reasonably well with those of any developing country, despite many complaints about continuing abuses of the criminal process. But such control exists, and party and court leaders do not conceal it.

Indeed, since the 17th Party Congress in late 2007, they have once again openly trumpeted the principle and practice of party domination of the judiciary. This is one of the few truly transparent aspects of a court system that is largely sheltered from public view.

Instructions from a high party official, or from the party’s Central Political-Legal Committee — headed not by a legal specialist but by former Minister of Public Security Zhou Yongkang — can determine the outcome of important cases. These may include the prosecution, conviction and punishment of not only major political dissidents like Liu Xiaobo and drug smugglers like Akmal Shaikh but also alleged spies, organized crime figures, unregistered religious worshipers, human rights defenders, fearless lawyers and many others.

Moreover, the Central Political-Legal Committee launches periodic anti-crime campaigns that suspend court protections of accused. It also sets policies for closing the courts, at the party’s convenience, to civil, commercial and administrative cases that are deemed “inappropriate.”

These could include claims by the victims of 2008’s tainted milk scandal or the families of children who died when faultily builtschools collapsed during that year’s earthquake or those who were victims of housing demolition scams, forced abortions and sterilizations, stock market frauds, polluted environments and other widespread and controversial grievances.

The committee prevents the courts from considering constitutional challenges to government or party actions, including police sentencing of people to as many as three years of the supposedly non-criminal punishment of “re-education through labor.” It also keeps courts from hearing challenges to the unfettered power of the party’s discipline inspection committees to indefinitely detain any of the party’s 75 million members and their associates for investigation of corruption and related matters.

The life of Chinese judges is not an easy one. They are underpaid, often overworked and harassed by a complex system of administrative rewards and punishments.

They enjoy no job security or professional independence; serve under division and court chiefs who often have little legal training but can decide important cases that the judges have tried; and are buffeted by a range of personal, financial and political pressures from outside the courthouse. Many judges understandably envy their foreign counterparts.

It is in this light that one ought to consider the irate rejection by China’s party and government spokesmen of the pleas of foreign governments, media and human rights critics calling for due process of law and judicial fairness for both Chinese citizens and foreign nationals.

The spokesperson for the Ministry of Foreign Affairs recently declared after Shaikh’s execution: “China’s judicial independence does not permit foreign interference. Nobody has the right to speak ill of China’s judicial sovereignty.”

The realities of China’s legal system make such pious proclamations ring hollow.

CNN published the following article by Professor Jerome A. Cohen on December 31, 2009. It can be found online at http://www.cnn.com/2009/OPINION/12/31/cohen.china.dissidents/