China’s Legal System – Communist or Feudal?

723px-supreme_people27s_court_of_p-r-china27s_badge-svg

Emblem of the People’s Court of the People’s Republic of China (source: Wikipedia)

 

 

On October 13, 2014, Yu Wensheng, a lawyer from Beijing, was arrested and detained by the police for 99 days . He was interrogated approximately 200 hundred times by 10 officers who worked in shifts night and day. Yu’s wrists were fastened behind his back with handcuffs.  “My hands were swollen and I felt so much pain that I didn’t want to live“, he told Amnesty International. “The police officers repeatedly yanked the handcuffs and I would scream“. Two days before his arrest, Yu had submitted a request to Beijing Fengtai Detention Centre for meeting one of his clients. The authorities had rejected Yu’s request without reason. As an act of protest, he stayed in front of the detention centre and later published a post online describing the incident. At around midnight the police forced him to leave, and on October 13 the Beijing Daxing District Public Security Bureau arrested him on charges of “disorderly behaviour” (寻衅滋事罪). Yu was denied access to his lawyers and his family. According to Albert Ho, chairperson of the China Human Rights Lawyers Concern Group, in the People’s Republic of China (PRC) “it is not uncommon for a lawyer to be made captive as a result of conducting his legal duties“. Cases of lawyers arrested without due procedures and tortured by state organs are numerous. It is estimated that since last year approximately 250 human rights lawyers have been detained or mysteriously went missing.

On 17 October 2015, 51-year-old Gui Minhai disappeared from his home in Pattaya, Thailand. Gui was a shareholder of Hong Kong-based publishing house ‘Mighty Current‘, which published salacious gossip books about high-rank officials of the Chinese Communist Party (CCP). Gui was born in China‘s Zhejiang Province and studied history at Beijing University. In 1988 he moved to Sweden and earned a PhD at Gothenburg University. After the Communist Party put down the Tiananmen student protests in 1989, Gui remained in Sweden and became a naturalised citizen. As the political climate relaxed in the 1990s, he returned to China and worked there for a few years, before entering the publishing business in 2012. A camera in his Thai condo showed him on October 17 as he came back home carrying groceries. Shortly afterwards, he drove away together with a man who had been waiting for him in the garage. 

According to Gui’s daughter, he suddenly stopped communicating with her. She did not know what had happened until she received an e-mail from Lee Bo, one of her father’s business associates: “Your dad has gone missing“, Lee wrote. “We’re afraid he was taken by Chinese agents for political reasons“. It has been suggested that Gui’s alleged abduction may be part of “Operation Fox Hunt“, launched by Xi Jinping in 2014 with the aim of forcibly repatriating Chinese citizens wanted by the government, including political dissidents.

On January 17 Gui surprisingly resurfaced in a televised “confession” broadcast on China Central Television (CCTV). He claimed that he had returned to mainland China because he “missed his homeland” and because he wanted to face charges of drunk-driving that date back to 2003, when he allegedly hit and killed a woman in the city of Ningbo.

The government in Stockholm expressed strong dissatisfaction with Beijing’s handling of the Gui case. A Swedish task force was sent to Thailand to aid local police in the investigations. There were no immigration records showing that Gui had left the country, a fact which clearly contradicts his claim made in the televised confession that he had returned to China voluntarily. The request of the Swedish embassy have an interview with him was turned down by China’s authorities.

The cases of Yu Wensheng and Guo Mihai are just two examples of the vast number of human rights abuses perpetrated by the government of the PRC. Against this backdrop it seems surprising that Xi Jinping has repeatedly stressed the importance of the rule of law, calling for a reform of the judicial system. At a meeting held in January 2016, Xi Jinping admitted that China’s judicial system is undermined by unfair trials and corrupt judges, and he criticised judges and prosecutors who manipulate trials in exchange for bribes or favours. A decision adopted at the meeting “vowed to ensure the independence of courts and prosecutors, while promising the supreme authority of the Constitution“, wrote Xinhua News Agency.

On the other hand, Xi Jinping made it clear that his vision of ‘judicial independence’ has little to do with the liberal model of division of powers. In October 2014, Xi explained that the relations between the Chinese Communist Party and the rule of law is “the core issue for the building of a country with the rule of law“. He stated that adhering to the Party’s leadership, socialism with Chinese characteristics and implementing the theory of socialist rule of law with Chinese characteristics are the keys to the promotion of the rule of law. “Party’s leadership is the most essential feature of the socialism with Chinese characteristics,” he was quoted as saying, “and the most fundamental guarantee of socialist rule of law“.

But what is ‘socialist rule of law’? And how can a fair judicial system be developed when its first allegiance is not to the law itself, but to the leadership of the Chinese Communist Party?

After the end of Soviet-style Stalinist orthodoxy as advocated by Mao Zedong, the PRC introduced a market economy which de facto annulled the main tenets of Communist ideology. The core of Communist doctrine – class struggle, dictatorship of the proletariat and the end of economic inequality and exploitation – were given up in favour of a state-promoted market economy, in which a large state sector coexists with private businesses and in which economic growth has brought about inequality. Such economic reforms have made Communism a hollow promise. China’s leaders have integrated into their Leninist one-party dictatorship key elements of nationalist ideology and of China’s feudal past in order to fill the ideological vacuum.

It will be the purpose of the following posts to show that the PRC’s legal system is incompatible with the notion of rule of law because it is based on an incoherent blend of elements which derive from China’s imperial past and Soviet-style Communist law. The article shall be divided into the following eight posts:

1) Law in imperial China – Confucianism and Legalism

2) China’s Legal System and the “Ten Abominations”

3) Mao Zedong, Legalism and Confucianism – Similarities and Differences

4) Law in Post-Mao China: Confucianism, Legalism, Imperial Traditions

5) Confucianism and the Law in Singapore and Taiwan

6) Legalist Tradition and Criminal Law – Republic of China vs People’s Republic of China

7) Legalism and Leninism in China’s Constitutional History

8) Voluntary Surrender and Confession in China’s Legal System – From the Empire to the People’s Republic

 

 

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One thought on “China’s Legal System – Communist or Feudal?

  1. Pingback: Lesenswerte juristische Weblinks #140 | Steiger Legal

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