Jerome A. Cohen
South China Morning Post
August 18, 2014
Jerome A. Cohen says party leaders’ rousing pledge to strengthen China’s rule of law, for the first time the focus of a major party meeting, is likely to ring hollow in the Zhou Yongkang case.
If violations of China’s constitution take place in such prominent cases, we can imagine the extent of violations in less visible ones.
For decades, China’s communist leaders have admonished their cadres to “combine theory and practice”. This is sound advice for any society. Yet, it is easier said than done. This perennial challenge now confronts the party’s Central Committee as it prepares to convene the highly anticipated fourth plenary session in October.
Party propaganda organs are trumpeting the fact that, for the first time in the party’s long history, issues relating to the rule of law will be the main topic of a major party conference. This meeting promises to be the culmination of a development that was launched almost two years ago at the 18th party congress and put into high gear when the Central Committee issued an ambitious reform decision a year later. It pledged to “accelerate the building of a just, efficient and authoritative socialist judicial system to safeguard the people’s rights and interests, and ensure that the people are satisfied with the equality and justice in every court verdict”.
The decision further gave such abstract goals detailed definition, promising to “promote the rule of law” by enforcing constitutional rights, improving government administration, strengthening the independent exercise of judicial and procuratorial power, and protecting human rights, especially those rights central to criminal justice. It emphasised legal prohibitions against torture and illegally obtained evidence and urged preventing and correcting wrongful convictions. It also endorsed “giving full play to the important role of lawyers in safeguarding the legal rights and interests of citizens and legal persons in accordance with law”.
This admirable agenda would do any country proud. Heaven is indeed wonderful. The key, however, is how to get there.
Party leaders and their legal advisers have been struggling with the problem of how to achieve the rule of law for many years. Now, they claim, the fourth plenum will “provide a road map” that will “flesh out” the goals set forth in the decision so that, as the former director of research at the Supreme People’s Court recently stated, “you can both ‘see and feel’ the rule of law”.
Moreover, some party experts are advocating not merely “governing the country according to law” but also subjecting the government and the party themselves to constitutional and legislative constraints.
Yet, on the very same day the Politburo confirmed that the fourth plenum would concentrate on the rule of law, it also confirmed that the Central Commission for Discipline Inspection would soon complete its investigation of the once extremely powerful Zhou Yongkang . This is widely interpreted to mean that the commission will soon recommend to the Politburo that Zhou himself, a former public security minister and member of the Politburo Standing Committee, be prosecuted.
The timing of this long-awaited action against one of the country’s highest former leaders, unprecedented since the trial of the Gang of Four a generation ago, was obviously designed to demonstrate that, in its battle against massive corruption, China’s new leadership is determined to practise, not merely preach, one of the fundamental precepts of the rule of law – equality of everyone before the law. As Professor Feng Lixia of the Central Party School promptly claimed, the move against Zhou “means that there is no such legal blind spot where ‘the lords are not subject to criminal punishment'”.
Many people inside and outside China, however, understand the Zhou case as an immediate, living refutation of the rule of law principles that the party is currently touting to the country and the world. If indeed there is now “equal justice”, they ask, why is it that many other leaders suspected of corrupt relations are also not being subjected to confinement and investigation in accordance with the party’s frightening shuanggui procedures? How can those disciplinary inspection procedures – the customary prerequisite to criminal prosecution of party members – possibly be consistent with the constitution and the Criminal Procedure Law?
Zhou has apparently been detained incommunicado for many months without family, friends, legal advice or judicial scrutiny. Although, as a former “lord” he has probably not been subjected to physical abuse, he has certainly suffered mentally, and can it be assumed that the evidence against him was legally obtained?
If the Politburo decides to prosecute Zhou, is it conceivable that the prosecutors and judges involved will be allowed to independently fulfil their responsibilities? Will they exclude illegally obtained evidence, fairly analyse the charges and proof, “give full play to the important role of lawyers in safeguarding the legitimate rights and interests” of the accused, and render an impartial ruling and sentence?
If the party decides to make public selected portions of Zhou’s trial, as it did the trial of his alleged co-conspirator against the dominant leaders, Bo Xilai , former party chief of Chongqing , it may add to the understandable satisfaction felt by Zhou’s many victims and enemies, but it cannot add more than a façade to the legitimacy of his punishment.
Of course, it must be said that these are extraordinary political cases and cannot be taken as representative of the normal administration of justice. But if violations of China’s constitution and the laws take place in such prominent cases, we can imagine the extent of violations in less visible ones.
Actually, what defence lawyers and their clients have revealed about China’s too non-transparent legal system suggests that, despite impressive progress in many other areas of law, when it comes to criminal justice – the most basic test of a country’s civilisation – large numbers of cases are indeed marked by such violations.
What should we make of this blatant discrepancy between theory and practice? At the height of the notorious Soviet “purge trials” of the 1930s, when Stalin manipulated prosecutors and courts to humiliate and convict rival political leaders on spurious criminal charges, he solemnly pronounced: “We need the stability of laws now more than ever.”
Although he sent huge numbers to their deaths without benefit of legal formalities, Stalin nevertheless thought it preferable to exploit the judicial system to mobilise popular support at home and abroad, and he saw no contradiction between his version of the rule of law as an instrument of political persecution and his perception of the needs of the socialist motherland.
Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations.
