Chun Peng
The Diplomat
September 10, 2013
Some signs bode well, but profound shifts must be completed before the optimism is truly warranted.
The recently concluded first trial of the Bo Xilai case has turned out – quite unexpectedly to many disillusioned Chinese and seasoned overseas China watchers – to be astonishingly transparent and sophisticated in terms of legal reasoning and argumentation. As it is being celebrated as a landmark in China’s legal development, less dramatic but more profound change has already taken place in China on its long march towards the rule of law.
The changed occurred at the 18th Party Congress. One of the two positions dropped from the Politburo formerly belonged to the chief of the Commission for Political and Legal Affairs, the party organ overseeing the making and enforcement of law in China. This is regarded as a loosening of the party’s grip over the legal system. Meanwhile, Zhou Qiang put the emphasis once again on judicial professionalization in his first public speech as newly appointed Chief Justice of the Supreme People’s Court. Based on his words at least, it would appear that the controversial motto of the “Three Supremes,” which prioritizes party interests over the Constitution and law, is finally put to rest.
Rule by Lawyers
Other signs that bode well for the rule of law in China. At their inauguration, incoming President Xi Jinping and Premier Li Keqiang both solemnly pledged that “We will be true to the Constitution,” a promise never openly made by any of the leaders in the history of the People’s Republic. The contrast is all the sharper when viewed in a historical context: half a century ago, President Liu Shaoqi waved his Constitution helplessly and futilely in front of the militant red guards; the supreme law of the land was incapable of protecting even the head of state at that time. It is virtually inconceivable that Xi or Li would permit or face such misfortune nowadays. Unlike Chairman Mao, who once proudly claimed to journalist Edgar Snow that he was above the law, both Xi and Li have degrees in that very subject (although more on this below).
There is more. During the annual sessions of the National People’s Congress and the Chinese People’s Political Consultative Conference earlier this year, among the media headlines were reports on just how many of the national leaders have a background in law. In fact, seven out of the 25 members of the Politburo were reported as either holding a degree in law or as having received legal training. This has been widely appreciated by both the state media and Chinese netizens as a propitious sign for the rule of law in China. Some even declare that China is now entering an era of rule by lawyers.
Whether or not the rule of law can be conflated with rule by lawyers is worth debating. But many Chinese do have good reason to celebrate and be hopeful this time. Many mainland Chinese are convinced that a salient feature of more mature and advanced nations is that they are led by lawyers. Chinese need not look to distant examples like Bill Clinton, Barack Obama, Nicolas Sarkozy or Tony Blair; the two most recent leaders of Taiwan are inspiration enough. Chinese legal scholars often make a historic comparison, noting that more than half of the American founding fathers were lawyers whereas none of the founders of the PRC were trained in law. So a Chinese desire for some of the critical ingredients of the rule of law is not just a recent phenomenon.
As such, the rise of legal education and the emergence of social segments with a legal background in China is sure to be welcomed. Thirty years ago, China had only a handful of law schools and no more than 1000 law graduates each year. Now there are more than 600 law schools producing 150,000 freshly minded legal professionals every year. The total number of practicing lawyers in China has jumped from 8,571 in 1981 to around 230,000 today. And lawyers have made their presence in Chinese public life increasingly felt. Today, 3,976 serve as deputies of the people’s congresses or members of the people’s political consultative conferences at varying levels. Among them, 16 are national deputies and 22 are national members. Ordinary Chinese might hope that these lawyers will bring to policymaking not only legal expertise but, more importantly, a deep commitment to justice. Certainly that is the hope for national leaders with a legal background.
However, caution is warranted. First, a closer look at the bios of the seven Politburo members who are portrayed in the media as having a legal background reveals a somewhat different picture. To understand this, it is important to note one peculiarity of the Chinese college degree system: law/legal studies (faxue) is actually an umbrella term that encompasses not only the discipline of law stricto sensu but also political studies, sociology, ethnography and Marxism. Unfortunately, media reports claiming a new era for China ruled by legal minds fail to note this distinction. In fact, only three Politburo members have received a legal education as is normally understood, and only one has a true law degree. Premier Li Keqiang has his first degree from the law faculty of Peking University while Du Qinglin, Vice Chairman of the CPPCC undertook part-time distance legal education at Jilin University. Sun Zhengcai, the young Party Secretary of Chongqing, did some part-time postgraduate courses on legal at in the Central Party School. In contrast, the other four leaders were not actually trained in law in the strict sense. President Xi obtained a doctorate in law from Tsinghua University, but he majored in Marxist theory and ideological-political education. Vice President Li Yuanchao specialized in Scientific Socialism when reading for his doctorate in law at the Central Party School. Vice Premier Liu Yandong studied political theory for her PhD in law. And Wang Huning, Director of the Policy Research Office of the CPC Central Committee, was a graduate of international politics. More important, none of the 25 Politburo members, including the three trained in law, has ever practiced law.
Committed to the Law?
Still, although it might be premature to herald rule by lawyers in China, the situation is not necessarily discouraging. Three national leaders with a proper legal education is already groundbreaking for China and would seem positive for those hoping for the rule of law. But before we get too excited, it would seem worth asking precisely the kind of legal education these three leaders actually received. In fact, that information is not easy to come by, with the exception of several reported anecdotes about Premier Li, a graduate of the prestigious Peking University Law School and the man deemed most likely to be an advocate for the rule of law among the top leadership. Li was enrolled in the law school in 1977 and established a close relationship with Professor Gong Xiangrui, a former student of Harold Laski at the London School of Economics who taught comparative constitutional and administrative law at Beida, as Peking University is known colloquially. In college, Li and a few other classmates frequently went to Gong’s house to discuss Western politics and law. One of his peers recalls that Li was open-minded and utterly opposed to the Cultural Revolution and the idea that the law is merely an instrument of class domination. Under Gong’s supervision, Li translated with others Lord Denning’s The Due Process of Law in his junior year. Li also developed a strong interest in economics and took courses on economic law, international business law and maritime law. As to practical experience, he completed a short-term internship while at college with the then newly established China International Trust & Investment Corporation in Beijing and reviewed case materials on investments and contracts. He also interned at a district court in Nanjing, where he was the lead defense lawyer in one criminal case.
While all these media sketches do help to portray the young Li as an excellent law student equipped with a strong intellectual capacity and some practical experience with the law, private and public, it is a stretch to draw any reliable conclusions about his own philosophy of law and governance. While Li used the term “presumption of guilt” in rejecting accusations of Chinese hacker attacks against the U.S., it remains to be seen whether uphold the principle of due process with sufficient vigor domestically to improve the Chinese judicial system, which is frequently tainted by procedural irregularities and injustices.
There is one last reason – and perhaps the most important of all – why we shouldn’t overstate the prospect of rule by lawyers in China: overstating the influence of one’s education background. A legal education at some point, or even throughout a lifetime, by no means guarantees a genuine commitment to the law. Look no further than the lawyer-turned-president of Taiwan who is now in prison. Leaders with a legal education may well deviate from the path that would be dictated by law for one reason or another, even in good conscience.
A parallel example is illustrative here. Since the 18th Party Congress, many observers are excited that the new leaders belong to the generation that spent considerable time working and living in the countryside as youths. Compared with the previous generation, this cohort is ostensibly more acquainted with rural life and thus more attentive to the interests and welfare of Chinese peasants. But as Xu Youyu has rightly pointed out, this may not hold true. After all, Chairman Mao was himself from a peasant family and used to help his father in the fields, yet in the 1950s he seemed to have no problem in believing the inexplicably high crop yields claimed in the disastrous Great Leap Forward movement. When the entire system is through the looking glass, it is hard for even the paramount leader to see reality. By that token, as long as China’s institutional arrangements are structured in a way inimical to the rule of law, it leaders may not be helped by their legal training.
This suggests that the future of the rule of law in China, or indeed in any country, does not rest entirely in the hands of its political leaders. Institutional change is also needed. Here, though, we must be equally careful not to go to the opposite extreme and claim the omnipotence of the system, overstressing the effectiveness and impact of structural reform while unduly downplaying the role of human agency, as if reforms will initiate, sustain and perfect themselves with little human endeavor. In this light, the hope for an era under the rule of lawyers should not be completely discarded, just kept at a healthy, balanced level.
So, while it is difficult to say exactly how these lawyer-leaders will perform at the dawn of the new leadership, and with only limited information about their past legal training and experience, we can still at least begin to think about what might reasonably be expected of them. We can start with three points.
Human Limitations
First, as law intrinsically deals with an imperfect world, we legitimately expect legally trained leaders to be keenly aware of inevitable human limitations, especially their own. This is probably the most significant and fundamental realization a legal education can bestow. Not all Chinese leaders might have read or agreed with The Federalist Papers, in which James Madison states that, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
China’s anti-corruption efforts are a fine example. Senior leaders repeatedly emphasize the urgency of the corruption problem, with Xi Jinping famously promising just months ago to keep power within the “cage of regulations.” But China has had centuries of experience in managing and governing officials, and senior leaders have a long tradition of using rules and regulations to control the rank and file. The rules are made harsher, new levels of supervision are added, and disciplinary bodies are given new powers. But this can never be the ultimate solution, as it presupposes the infallibility of the senior, and particularly the supreme.
In reality, higher-level authorities are not always capable of identifying or eliminating corruption, nor are they by nature incorruptible themselves. “Cages” created by those at the top will never be effective on their own. Rather, for the law of anti-corruption to work, senior and supreme leaders must acknowledge their own limitations and surrender themselves to the law.
Unfortunately, this has long proven difficult in China, for both cultural and institutional reasons. Early this year, Xi vowed to fight both “tigers” and “flies” in a new round of anti-corruption campaign, but to many Chinese, whether or not the tigers are caught still depends on extra-legal factors such as power struggles among the elites. It is no wonder that more than one year after Bo Xilai’s downfall, many continue to believe that he is an innocent victim of political infighting rather than a criminal suspect pending legal judgment.
Meanwhile, there is the institutional difficulty created by the lack of downward accountability of cadres and officials to the people. With the petitioner system smothered by the pressure to maintain stability and the traditional press nowhere near being a reliable Fourth Estate, online exposure and petition is now prevalent and widely welcomed as a weapon against corruption. Unfortunately, it is a weapon that misfires and backfires. Misfires because it quickly forms a court of public opinion before the facts are verified, and is often used with ulterior motives such as libel and smear campaigns. Backfires not only because it is in no way guaranteed to be effective all the time but, more crucially, because it tends to detract attention from what is urgently needed: reliable institutions that can hold corruptible officials accountable.
Conflicts of Values
Second, the law constantly involves value judgments. But what matters more to China’s top leaders are not value judgments within the law, but between the principles of law and other competing values. Legal principles such as due process have historically been outweighed by considerations of efficiency. The overhaul of the criminal justice system has long been hindered by the perceived need to maintain social stability.
In a fast-changing and complex society like China, the leadership must find a nuanced balance among all these conflicting but entangled values. It may not be necessary to arrive at a position where legal rights always triumph. Nonetheless, a society in which stability trumps everything else is undoubtedly neither desirable nor sustainable. Perhaps more challenging is correcting the constitutional relationship between the Party and law, or balancing the value of law with the value of the Party’s leadership. China’s Constitution stipulates that all organizations, presumably including the Communist Party should abide by the Constitution and law. But the same constitution also provides for the unquestionable leadership role of the Party, which has already taken actions outside the law from time to time as it has seen fit.
It remains unrealistic to anticipate that the current crop of national leaders, however they differ from previous generations in the seriousness with which they take the law, will soon decide to subordinate the Communist Party institutionally under the law by, for instance, allowing judicial or constitutional reviews of the Party, especially when it has for so long prided itself on its successful leadership without stringently following pre-determined rules. This flexibility is also viewed favorably in the eyes of many proponents of the Beijing Consensus or China Model, who criticize the West for being too legalistic sometimes. But we should not conclude that the existing relationship is healthy precisely because it remains to be defined more clearly. Flexibility may prove beneficial when weathering a storm but it is counterproductive and dangerous when stable expectations are needed by the market and society. Last month, the Party for the first time issued two regulations formalizing the procedures for making Party rules at the central and local levels. Whilst this is progress towards binding the Party in rule-making activities, the precise relationship between Party regulations and state laws and regulations has yet to be spelled out.
So these two distinct but intertwined normative systems must continue to coexist, with no clear rules to determine which takes precedence should they overlap and clash. Given the perceived flexibility advantage Party rules have over laws and the practical difficulty in pinning down their exact relationship, this ambivalence is likely to continue. But we probably can count on the legally trained leaders, particularly Premier Li Keqiang, to recognize the value of an independent legal system and advocate to remove the hands of the Party from legal affairs, especially court proceedings, just as he promises to curb government interference with the market. Even if the Party retains a substantial role in formulating the law through the People’s Congress, which makes it less comparable in the British context to the Queen than to Parliament, it has to make itself more inclusive and participatory to better represent the people. Which leads us nicely to the next point.
Power of Persuasion
Third and finally, lawyers across the world earn their reputation by their power of persuasion. Politics in China, including Party politics, is widely perceived to be lacking the element of persuasion, which requires the government to convince and mobilize the citizenry with reason and argument. Just as the skill of persuasion is indispensable to lawyers, it is vital for governing a country in a legal environment. For China, this is much more than a change in the way the Party and government work; it goes to the very soul of Chinese politics and public life. To persuade, the authority must at minimum publicize its policies and decisions. It must also deliberate beforehand so that it has some reason to offer for any particular policy or decision. Sometimes it must engage the public in policy deliberation as this may help increase the likelihood of successful persuasion.
The past few years have witnessed impressive improvements in all these areas in China. The Open Government Information Regulation turns five this year and all central and local governments now have websites with ever more content. In line with the 2000 Legislation Law, public consultation is becoming the fashion in drafting major national laws, such as the Property Law, Labour Contract Law and Social Security Law. Press conferences are held more frequently by more departments not only in response to scandals and crisis but also to communicate, justify and explain specific decisions. Zhou Qiang, the recently installed president of the Supreme People’s Court, has earned praise for his innovative work in enhancing participatory governance in Hunan, where he used to be the governor.
Still, it is not a time to be complacent. According to national surveys conducted by Peking University and the Shanghai University of Finance and Economics, both national and local governments fall short of strictly fulfilling their legal obligations to publish information, especially those concerned with budget and finance. There are also times when it takes a mass protest to awaken a local authority to the fact that the public needs be informed and heard before large-scale chemical industrial projects get approved. More interesting and subtly, as Chinese officials become increasingly media-savvy, they pick up PR tactics very quickly, perhaps from their training at the Kennedy School. This has nothing to do with reasoned persuasion, and again Li knows this best as he once was a criminal defense lawyer himself: you cannot win a case just by offering sound bites in front of the judge. It has been made clear that China has entered an age of reason and even the highest authority, the Communist Party’s leadership is now subject to scrutiny. The recent debate about constitutionalism in China is a good example. Though it is worrisome that several Party-run journals and newspapers have denounced the concept of constitutionalism as being too Western and capitalistic to suit China, their opponents, notably constitutional law professors from Renmin University, have been able to openly refute this line and argue that there is no intrinsic contradiction between constitutionalism and socialist China under the Party leadership. They may not go as far as many would like to see and their interlocutors still seem to lack much substantive argument beyond official party lines. But in the absence of any final judgment imposed from above, their open debate may actually mark the beginning of an era in which the authorities get that they need to persuade the people.
Admittedly, the above expectations about self-reflection and limitations by superior, sound value judgments about law, as well as reason and persuasion in public life go well beyond the sphere of law with profound implications for accountability, transparency and democracy in China. This is justifiably so since legal reform in today’s China cannot be isolated from – and in fact requires – political reform in a broader and deeper sense. Bearing in mind the possibility of imperfect realization and the need for institutional change, we have reasons to expect legally educated Chinese leaders and their non-lawyer colleagues to lead the country forward on these three fronts, not merely by virtue of their legal training but also to fulfill their promises.
Chun Peng is currently a DPhil candidate in law at the University of Oxford. He holds a LL.B. from Peking University and a MJur from Oxford. He is also a research fellow at the Centre for Public Participation Studies and Supports at Peking University.
