June 6, 2012
As China's Communist Party elite prepare to select the country's leadership for the coming decade, to what extent does concern for the rule of law affect their deliberations? Will the successor to Zhou Yongkang, the Politburo Standing Committee member who controls the legal system, favor continuing lawless repression or seek to subject both Party and government to the law on the books that is often ignored in practice?
When the Bo Xilai scandal erupted, Party leaders immediately promised the nation that Bo's case would be handled strictly according to law. Yet, several months later, Bo has still not been turned over to the legal system. He remains cut off from the world and any legal protections, in the custody of the Party's discipline inspection commission. Only when the Party chooses to complete its investigation and decide his fate will the now hapless Bo learn whether he is to be formally punished by the legal system like previous Politburo members Chen Xitong and Chen Liangyu or permanently isolated from society by illegal political confinement like the former Party General Secretary, the late Zhao Ziyang.
In the Bo case, it is amazing that Party leaders do not acknowledge the blatant contradiction - open for all to see - between their promise and their practice. Most of the many other cases where Party members are investigated for corruption are more quietly handled by discipline inspection commissions, whose secret procedures always take precedence over legal procedures.
Non-Party members are often victimized by other kinds of illegal measures, also usually taken at low levels of visibility. For example, the government's increasingly comprehensive and expensive "stability maintenance" system, which is subjecting more and more people suspected of being potential "troublemakers" to various preventive restraints, has until recently attracted little attention. Unauthorized "soft detention" and even kidnapping, "black jails" and beatings of petitioners, human rights defenders and their associates and families only occasionally come to light, and those who bring them to light may themselves be illegally persecuted for their efforts.
Shandong province's extraordinary, unlawful transformation of blind activist Chen Guangcheng's simple farmhouse into a home prison would have gone unnoticed had the "barefoot lawyer" not already been known to the foreign media. Chen's case illustrates not only informal punishment imposed without legal basis but also shows how formal punishment is frequently imposed through a perverse application of criminal law and procedure. Between two periods of unauthorized residential lockdown in 2005-06 and 2010-12, Chen spent 51 months in a conventional prison after conviction on spurious charges following farcical trials where neither his witnesses nor his chosen lawyers were permitted to participate.
Beijing lawyer Gao Zhisheng and Shanghai lawyer Zheng Enchong are other well-known Party targets who have suffered from both prison sentences after distorted criminal trials and other detentions that lacked even a figleaf of legal justification. Gao is still imprisoned in the far-off Xinjiang region while Zheng remains restricted at home.
Although the internationally prominent artist and social critic Ai Weiwei had long been informally harassed, since April of last year police have used formal criminal processes to restrain him, twisting the law authorizing "residential surveillance" to detain him incommunicado in harsh conditions in their "residence" - not his - for 81 days before releasing him on the Chinese equivalent of bail for a year.
Of course, many democracy advocates, including Nobel Peace Prize winner Liu Xiaobo, have received very heavy sentences after unfair trials for acts of courage that ought not to have been treated as crimes in the first place. The list of those who have been persecuted either without a pretense of legality or through abuse of the criminal process is endless.
Do all the contenders for power among the Chinese leadership want to continue this system of lawlessness? Certainly, many of the able legal professionals who now staff the bureaucracy, the judiciary, the procuracy, the legislature, the legal profession and academic and research organizations, and even some police and Party experts, think the time has come for a serious legal system. One might think that, if only to protect themselves, some leaders might see the desirability of bringing due process of law to the administration of justice, even if it requires the Party to gradually surrender power over judicial decision-making and to develop institutions for effectively controlling the police.
Given the tensions building in Chinese society and the apparently widespread sense of injustice that underlies many of the huge number of often violent "mass incidents", a new policy genuinely designed to place both Party and government under law might prove popular and help to repair the current sagging reputation of Party leaders.
This is why the present, largely hidden struggle over who will succeed Zhou Yongkang in the Politburo Standing Committee as the head of the Party's national political-legal commission is so important. More than politics and personality is involved. The next occupant of that position, once sought by Bo Xilai, is likely to have a crucial influence over one of the most important policy issues confronting China - whether lawless repression will continue to be the watchword of the leadership or whether a new generation will establish political institutions and a legal system commensurate with China's economic and social progress and its twenty-first century aspirations at home and abroad.
This article was published in the South China Morning Post on June 6, 2012 under the title "Crunch Time." It was published in Chinese in Taiwan's China Times on June 7, 2012.
Professor Jerome A. Cohen is a law professor at New York University’s School of Law and co-director of its U.S.-Asia Law Institute. He is also adjunct senior fellow for Asia at the Council on Foreign Relations. See www.usali.org