China Policy Institute: Analysis


Law and Justice

“New” Cross-Border Crime between Hong Kong and China

Written by Sonny Lo.

Since the return of Hong Kong to China on July 1, 1997, cross-border crimes have surfaced repeatedly. Mainland Chinese have been involved in illegal activities in Hong Kong, including drug trafficking, cross-border prostitution, human smuggling, and even attempted kidnapping of a few wealthy people. On the other hand, Hong Kong citizens have committed criminal offences on the mainland, such as triads, which have recruited mainland members, and promoted office bearers in Shenzhen.
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Corruption and the Death Penalty

Written by Bin Liang.

On Monday, July 4, 2016, Ling Jihua was sentenced to life imprisonment by the No. 1 Intermediate People’s Court of Tianjin after a closed-door trial. He was convicted of taking bribes, illegally obtaining state secrets and for abuse of power. Upon hearing his sentence, Ling read aloud from a prepared script stating that he did not contest the conviction and “thanked” the court and the lawyers for their work. Ling is a former Chinese politician and one of the principal political advisers of Hu Jintao, the former President and General Secretary of the Chinese Communist Party. He served as the Director of the General Office of the Communist Party from 2007 to 2012, and was seen as a promising candidate for promotion to the top leadership at the 18th Party Congress in 2012.

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The Involvement of Women in Criminal Markets in China

Written by Anqi Shen and Georgios A. Antonopoulos.

Following economic reforms launched in 1978, criminal markets flourished under an increasingly market-oriented economy. With cash becoming a major factor in the social life of post-Mao China, men and women alike became active players in the money-generation process. Our research, based on interviews with incarcerated women, focuses on the role of females in criminal market activities, i.e. profit-driven crimes that require organisation and co-operation with others, in reform era China.

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Violence Against the Chinese Police

Written by Suzanne E. Scoggins.

Violence against the police in China has become commonplace. At least once a year, a major incident involving civilian attacks on the police makes international news. Although 2016 has been relatively calm, at least three officers were killed in June 2015 when ethnic Uyghurs attacked a traffic checkpoint in Xinjiang with bombs and knives. That incident occurred just days after police in Hunan were attacked by an angry mob of villagers. A few months later, at least five officers were stabbed to death at a coal mine in Xinjiang.

Often, the attacks are politically minded, as appears to have been the case in both Xinjiang events. Such incidents tend to be deadly, both for officers and protesters, and may involve knives, homemade bombs, vehicles ramming into police stations, or some combination of the three. These attacks are often treated as terrorist events and dealt with swiftly and harshly. But in other cases, violence erupts not because groups are lodging higher-level political complaints but because residents are retaliating against specific acts of police violence, deception, or incompetence. Continue reading “Violence Against the Chinese Police”

The rise of rule by fear

Written by Eva Pils.

In the course of my research on Chinese human rights lawyers over the past several years, I got to hear a lot about the techniques the government allegedly uses to control them. I came to refer to them as ‘fear techniques.’ They included tracking and following; soft detention; ‘being travelled;’ being asked in for ‘chats;’ criminal, administrative, and judicial detention; violent attacks; forced disappearance; torture and — in one or two particularly disturbing instances – brief spells of medically unmotivated, forced psychiatric detention (被精神病). Some of these techniques made some reference to legal rules, but in their actual use of these rules against human rights lawyers, the authorities invariably, and quite often egregiously, broke the law.

Those forcibly ‘disappeared,’ for example, were, in addition to being locked up, reportedly pressured to ‘confess’ and ‘repent.’ They usually also had to promise – in writing as well as in front of a camera recording their statements — that they would stop their work as human rights defenders: stop taking on certain kinds of cases, stop meeting each other, and so on. It did not matter that there were no crimes to confess to and that promises made under duress were not binding. As one lawyer commented in 2011, ‘Not only did they want to make you say that black was white, you also had to explain why black was white.’ The point, he thought, was to show who was master and show that no law — not even that of elementary logic — constrained the power he had tried to resist. The authorities using these fear techniques were intent on stopping the lawyers’ efforts to represent their clients and to challenge power abuses, while dreaming of (if not actually building) a better system.

As the language of reform – according to a dictionary definition, ‘improvement or amendment of what is wrong, corrupt, unsatisfactory’ – which was so long considered axiomatic for discussions of the Chinese legal system, is now being questioned more widely, I would suggest that rule by fear should be considered as a centrally important element of the ‘new normal’ under Xi Jinping’s party leadership.

Deng Xiaoping’s post-Mao ‘Reform and Opening’ was driven by certain liberal ideas, including the belief that well-enforced laws protecting economic and other liberties were necessary to promote economic growth. The reality was of course more complex. For one thing, some rises in prosperity seemed unhampered by the lack of rights protection and rampant corruption. An example of this is the way land was redistributed during the process of urbanisation. The methods for achieving redistribution often violate the basic rights of those being evicted, but the process is quick and effective. Another aspect of this complexity is that, especially after the repression of the 1989 Democracy Spring movement, the idea of reform was de-politicised. It shifted toward hoping for top-down ‘rule of law reform’ and incremental growth of ‘civil society.’ As a result, observers in- and outside China were led to regard certain challenges to the government as too radical. The repression of such efforts, conversely, was dismissed as merely incidental, hence systemically insignificant departures from the (unquestioned) reform path.

In the Xi Jinping era, some changes that had been under way for some time have become more pronounced. As early as in 2013, there was an anti-liberal shift of rhetoric and attitude, for example in Document Number Nine, which, inter alia, dismisses the very idea of universal values. Then in 2014, there was the ominous announcement  that ‘Party Leadership and Socialist Rule of Law are identical.’ It heralded legislative changes marking a further an anti-liberal re-conception of the legal process. The National Security Law framed the struggle for security as one against foreign and domestic enemies, including perceived ‘enemy forces’ within wider Chinese society as well as those considered disloyal within the Party. The Draft Foreign NGO Management Law Draft Foreign NGO Management Law  followed this trend by treating foreign civil society organisations as, in principle, suspect and potentially subversive.

These changes have allowed rule by fear techniques to play a more and more prominent role, and to be applied in a more and more open manner. The reorganisation of the criminal process offers good insights into how rule by fear was developed and how it ties in with a general anti-liberal re-conception of law under Xi. For example, revised Criminal Procedure Law rules  on ‘surveillance in a designated place,’ effective since 2013, suspend most protections a suspect ought to have in the ordinary criminal process. Framed as rules applying to cases of suspected state security offences, they create a zone of exception from legality that is ostensibly based on legal rules. They also provide perfect opportunities for torture and terror, of which the recent attacks on human rights and public interest lawyers, journalists, labour activists, women’s rights activists, and so on have made use. In other words, whereas in 2011, the authorities made people disappear stealthily and generally without admitting that this was happening, forced disappearances have now effectively become part of the system, and the authorities carry them out ‘in accordance with law.’

We could see the results as one after another distraught individual was wheeled out on national television to ‘confess’ to wrongdoing, express repentance and (in some cases) humbly ask to be given another chance, shortly after being disappeared. The Party-State seems intent on advertising its repression. As was quickly observed, these confessions made very little sense, but then again that was the point. Precisely because they made no sense and offended basic principles of criminal justice such as the presumption of innocence, recorded ‘confessions’ were effective in projecting unlimited, in principle arbitrary and all the more fearful state power.

In televising and advertising its repression, the Party-State clearly seeks to amplify these fear effects. By detaining foreigners in China and allegedly orchestrating cross-border abductions of Chinese and foreign nationals, as well as submitting the victims of these abductions to the same kinds of measures, it has taken its visual repression even further. It is not only transmitting images across its borders, but also signalling to the world that foreigners may become targets. It is thus exporting rule by fear techniques and making them a transnational phenomenon.

If there are reasons to remain optimistic about China’s trajectory of political-legal change, I think it is in considering the causes of the recent anti-liberal turn. They are likely to be the result of many perceived threats, including, it appears, threats of disloyalty and disobedience from within the Party. But at least in part, they reflect the rise of an increasingly vocal and independent civil society contending for political power. As the post-Mao liberal reform process is being closed down, this might be regarded as ‘Reform and Opening’s’ unintended long-term consequence.

Dr Eva Pils is a Reader in Transnational Law at King’s College London and a senior nonresident research Fellow at the U.S.-Asia Law Institute at New York University. Her research interests lie in the areas of human rights, comparative constitutional law, law and development, legal philosophy and the law in China.  Image credit: CC by Leon Fishman/Flickr.

Sources for Chinese Legal Reform

Written by Kenneth Winston.

It is commonly observed that Chinese legal history was guided for centuries by the idea of rule by law, rather than rule of law, which explains why legal reform in China requires the infusion of Western practices if it wishes to create a modern legal system. This brief historical note argues to the contrary that traditional Chinese legal thought on rule by law is a rich indigenous resource and provides independent legitimation for contemporary reformers.

“Legalism” is the conventional translation of the Chinese fajia (school of law), referring to a tradition of thought and practice that regards law as the principal instrument of governance. Although traces of this school can be found in writings dating to the 7th century BCE, it emerged as an influential body of thought in the fourth and third centuries BCE, and came to be associated with the rise of the Chinese imperial state during the Qin and Han dynasties. Representative thinkers are Shang Yang (d. 338 BCE), Shen Buhai (d. 337 BCE), and Han Fei (d. 233 BCE).

Legalism’s conception of law, in the standard view, is that law is amoral and an instrument of power, used to strengthen and preserve the state. This emphasis arose from preoccupation with the conditions of social order and the aim, as Han Fei puts it, to rescue all living beings from chaos. For the Legalists, order was not an abstract problem but grew out of their experience during the Warring States period, when many states contended for domination and the threat of war was constant. They wrote, in particular, about the resources needed to strengthen a state against its rivals, and thus anticipated the formative period of nation-building that began with the Qin dynasty. In the standard view, the ruler is the source of all law and stands above the law, so there are no limits or effective checks on the ruler’s power. Law is what pleases the ruler. This conception is most starkly expressed in the writings of Shang Yang, whose regard for human subjects was limited primarily to their value in fighting wars of conquest and expanding the state’s territorial control.

This is rule by law, in contrast to rule of law. The latter regards law as constraining the exercise of power, so that it is truly laws that govern legal subjects, not the desires of specific individuals or groups.  Rule by law, in contrast, appears within a relationship of domination, where a superior (in power) issues commands to an inferior (in power) and compels the inferior to act by threatening sanctions in the event of non-compliance, or sometimes rewards in the event of compliance. Thus, law is imperative, taking the form of commands; it is coercive, in relying on irresistible incentives manipulated by the ruler; it is pre-emptory, in taking priority over all other obligations; and it is morally arbitrary, since no limits exist on what the ruler could demand.

The most sophisticated elaboration of Legalist ideas was by the aristocrat Han Fei, a member of the ruling family in the small state of Han. His essays, collected in what has come to be known as the Hanfeizi, address their advice not to the ruler per se but to the good, enlightened, benevolent, or sage ruler. This does not mean Han Fei expected the ruler to possess exceptional qualities, either of virtue or intellect.  It suggests, rather, that he was elaborating an ideal of legal order, establishing criteria for success or failure in the enterprise. The mediocre ruler, especially, needs the guidance that comes from the correct ideal.  Criteria for success or failure are not necessarily moral criteria, but Han Fei is clear that the general welfare is the proper guiding goal: not only peace and harmony but also a productive labour force and general prosperity. As a result, the Hanfeizi stands somewhat apart from other Legalist writings, with deeper insight into the nature and need of a political morality of governance.

The moral dimension of the Hanfeizi has critical as well as constructive components. On the critical side, Han Fei opposes Confucianism and offers an extended critique of the forms of social order based on it.  The Confucian view is that right relationships are achieved through respect for authority, not the threat of force. Society is transformed by the virtuous example of an educated elite. Accordingly, Confucians object to rule by law because it depends on punishments and rewards, which reinforce self-interested calculation. These methods circumvent the sense of shame and fail to encourage habits of self-control, thereby undermining moral development. The proper method is rule by virtue rather than by law, to inculcate a sense of appropriate conduct (yi) and the rules of propriety (li), through education and imitation of exemplary persons.

To this, the Hanfeizi objects that Confucian rules of propriety constitute an esoteric body of knowledge requiring extensive study and training.  Since only small, select groups are capable of such training, Confucians have a monopoly on interpreting the rules and exemplifying virtue—and then expect deference from everyone else, including the ruler. Indeed, many Confucians measured their status in society by the laws they were exempted from, such as military service, taxes, and corvee labour. Whose interests are actually served by the activities of this educated elite? Han Fei’s answer is that they serve private interests, not the public good. In striking language, almost echoing the rule of law ideal, he says: “[T]he most enlightened method of governing a state is to trust measures [i.e., laws] and not men [i.e., Confucian ministers].” [Liao tr. 2:332]  Thus, Han Fei advocates equality before the law.

Of course, this idea of equality can be understood as a cynical effort to eliminate centres of power that might rival the ruler. In place of the five Confucian relationships, each with its own form of deference, we have the singular relationship of ruler and ruled. However, it can also be understood as an attack on the unjust privileges of a social class, for whom family pedigree or social rank were a basis for exemptions from general rules. Where the cynical interpretation requires reading between the lines, Han Fei’s moral critique is explicit; he often warns that the mandarin elite will act to increase its power and wealth, at other people’s expense, if the ruler fails to rein them in. The deep inequalities of Confucian society are a continuing source of conflict and injustice.

If Confucianism were all of morality, the Hanfeizi would be seen correctly as insisting on the separation of law and morality. But the commitment to equality before the law makes it evident that the ruler’s use of law to govern is a fateful moral choice. The self-restraint of subjects in doing what a rule requires is matched by the lawmaker’s self-restraint in adhering to the declared rule.  Rule by law requires official faithfulness, to provide the guidance and predictability needed for effective governance. To discard the law one has issued and instead follow one’s personal whim would produce disorder; the ruler establishes the standard and then abides by it. Thus, it is not the case that the ruler can change or revoke any law at his pleasure. To the contrary, the enlightened (benevolent, sage) ruler does not inflict punishment upon innocent people, or fail to inflict punishment on the guilty. In this and other ways, Han Fei gives expression to basic principles of legality, such as nullum crimen, nulla poena sine lege (no crime, no punishment without law).

The Hanfeizi also goes a long way toward recognizing that effective legal order depends on the moral agency of subjects. Since laws use general language, they abstract from particulars and take the form of conditional assertions: if someone acts in a specified way, certain consequences will follow. Thus, subjects are not coerced by law unless they act so as to place themselves in violation of it. They do not obtain permission from the ruler before they act; they act by their own lights, considering what official response may occur. In this way, the effective use of law turns on the capacity of subjects to engage in practical deliberation, to make choices, and to take responsibility for what they do.

The excesses of the Qin dynasty—much closer to the model of Shang Yang than to Han Fei—produced a permanent reaction in China against a purely Legalist approach to political order. Future dynasties attempted to achieve centralized legal control, while using law to protect a moral order constituted by Confucian practices. But the Hanfeizi’s emphasis on equality before the law and the moral agency of subjects offers an indigenous resource for elaborating a principled mode of rule by law that addresses the legal situation in contemporary China.

Kenneth Winston is a Retired Lecturer in Ethics at the Harvard Kennedy School and author of Ethics in Public Life:  Good Practitioners in a Rising Asia (Palgrave Macmillan 2015) Image credit: CC by Marc Garrido Clotet/Flickr.

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