19 October, 2017

How Different Is Rule By Law From Rule Of Law?

By Charitha Ratwatte –

Charitha Ratwatte

Charitha Ratwatte

Is the Law supreme and the Ruler subject to the Law, or is the Ruler supreme? From ancient times, China has been ruled by law. The Emperor’s edicts were enforced very strictly, to the very letter of the law, literarily and in spirit, in word and deed, by an efficient Confucian bureaucracy, with scant regards for fundamental human rights. The more accountable and transparent Rule of Law was not heard of.

However, since the late 1970s, China’s ruling Communist Party has officially been committed to the Rule of Law. In October 2014, when the Communist Party’s Central Committee met in the Great Hall of the People in Beijing, the subject of focus was ‘Governing the Country According to Law.’

Most Chinese legal scholars believe greater judicial independence is crucial if China is to tackle endemic corruption, improve governance and put the economy on a more sustainable growth path, notwithstanding President Xi’s savage crackdown on corruption, which recently took down Xu Caihou, a former Vice Chairman of the Communist Party’s Central Military Commission, for taking on his own confession “extremely huge bribes,” the second-highest ranking Party official to be purged.

Law reform and Government crackdown

However there is some disillusionment among Chinese legal scholars on this aspect of law reform. He Weifeng, a prominent Chinese legal scholar, says he is so disillusioned by over the country’s legal systems status quo that he has stopped paying attention to the stream of daily Government announcements about proposed legal reforms. Even more optimistic scholars were not too hopeful, prior to the Central Committee meeting. Their view was that President Xi will only tinker with the existing system rather than attempt more ambitious changes to limit the Communist Party’s own power.

China Sri LankaZhang Ming, Professor of Politics at Beijing’s Renmin University, said: “Of course there will be no discussion about implementing judicial independence, although there may be some minor reforms – the Central Government may take some judicial power away from local governments. But just look at how many people have been arrested recently and how none of their cases have been through proper legal procedures. This certainly does not send a signal that the Government wants to improve the Rule of Law.”

Maya Wang, Asian Researcher at Human Rights Watch, Hong Kong, said: “We have seen a very harsh Government crackdown on activists who have done nothing but exercise free speech, which is supposedly protected under China’s Constitution. In China today the law is primarily a tool used by Government to restrict liberties and freedoms rather than protect them.”

Classic definition of Rule by Law

This is a classic definition of Rule by Law, where oppressive laws are used to limit the rights of the common people, while the Rule of Law envisages that the Law will limit the power and right of the State to impose restrictions on the common man’s basic fundamental human freedoms.

Judicial independence was certainly not on the table at the Central Committee meeting, but there was hope that some quite significant reforms will be considered, such as the possibility of local courts being in the future answerable to higher level authorities rather than to the local Communist Party cadres, as is the case now. The idea would be to reduce the sort of corruption and influence-peddling that exists at every level that has made the Chinese courts some of the least trusted institutions in the country.

Transferring supervisory power from local party cadres to the Provincial or Central authorities, including funding and personnel changes, was also a possibility. In the Chinese judicial system, judges usually owe their jobs and career advancement to local Communist party officials, who wield tremendous influence over the judicial system and can abuse the system to protect or abuse virtually anyone they choose.

Many of China’s legal scholars argued, prior to the meeting of the Central Committee which took up this issue in October, that if China’s leaders really want to impact the problem of corruption at its root, they have to do much more to institutionalise the Rule of Law and make clear that even the most highly-connected Communist Party members are not above the control of the law. Using the repressive laws or the abuse of law to suppress dissent is certainly not the way to go.

The fact that the subject was on the agenda of the Central Committee of the Communist party was hailed by some as an achievement. Lin Zhe, a Professor specialising in anti-corruption processes at the Communist Party’s main school for training future leaders, said: “By repeating these slogans again and again it shows they weren’t able to solve the problem in the past but it also shows they at least know there is still a problem.”

Central Committee Plenum report

In the event, the Full Report of the Communist Party’s October 2014 Annual 370-member Central Committee Plenum, published on 28 October, provided some relief, in an effort to reduce local interference in the judicial process. It called for an ‘extensive and profound revolution’ in the way China is governed.

The Plenum said judges and prosecutors should be recruited and promoted by provincial level authorities rather than by local Communist Party cadres. The Plenum also states that China’s Supreme Court would establish a series of Circuit Courts in various parts of the country to implement a supervisory jurisdiction. The Plenum also reduced the number of crimes for which the death penalty can be imposed.

The Communist Party of China has a new slogan – ‘Socialist Rule of Law with Chinese Characteristics’ – that would be implemented by 2020, obviously a play on Deng Hsiao Ping’s ‘Capitalism with Chinese Characteristics’. However overall, the Plenum was a disappointment.

The Professor at Rennin University at Beijing Zhang Ming said: “I don’t see anything new in the Plenum Report. It puts too much emphasis on the Communist Party’s leadership without stressing the need of the party to party members to obey the law.”

Steve Tsang, a Sinologist at Nottingham University, said: “The Plenum Report seems to be a general restatement of the principles about the so-called Rule of Law. It’s nothing you or I would understand as Rule of Law, it’s a matter of strengthening the functioning of the judiciary under the leadership of the Party, while reducing the capacity for abuse at the local levels.”

In sum, although the fact that the Chinese Communist Party Central Committee at its October 2014 session dealt with the issue of the ‘Rule of Law’ in China, the final Plenum Report, while providing some relief against the abuse of law at the local level, did not satisfy critics beyond that limit. Benign authoritarianism on the Singapore model seems the aim.

Rule of Law vs. Rule by Law

What in reality constitutes the Rule of Law and contra distinguishes it from the Rule by Law? The latter is fairly easy to define. Rule by Law is where repressive laws, a politicised Police force and administrative mechanism and a judicial system under executive control are used by autocratic governments to repress and suppress the rights and freedoms of ordinary citizens, contravening the international standards of human rights and freedoms laid down by international law and UN Conventions.

On the other hand, the Rule of Law, as its core, has been defined by Baron Bingham of Cornhill: “That all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect in the future and publicly administered in the courts.”

Baron Bingham has been described by his peers as the greatest English Judge since the World War II; the only man in the modern age to be Master of the Rolls, Lord Chief Justice and the senior Law Lord in the House of Lords of Britain’s Parliament.

In September 2005 the Council of International Bar Association passed a resolution in which it said: “The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.”

While this resolution attempted no definition, it went on to list certain components of the Rule of Law; among them an independent, impartial judiciary, the presumption of innocence and the right to a fair and public trial without undue delay. It described as ‘unacceptable,’ arbitrary arrests, secret trials, indefinite detention without trial, cruel or degrading treatment or punishment and intimidation or corruption in the electoral process.

Lord Bingham has raised the question: “What makes the difference between good and bad Government?” Predictably his answer is: “The Rule of Law.” Bingham goes on to say: “The concept of the Rule of Law is not fixed for all time. Some countries do not subscribe to it fully, and some subscribe only in name. Even those who do subscribe to it find difficulty in applying all its precepts all the time. But in a world divided by differences of nationality, race, colour, religion and wealth, it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interest of good government and peace at home and in the world at large.”

China’s attitude to the Rule by Law

China’s attitude to the Rule by Law is important due to the position of influence that the People’s Republic of China holds in today’s world economy. China is promoting what it terms as the Beijing Consensus, in contra distinction to the Washington Consensus, the latter being promoted by the liberal democratic governments, the International Financial Institutions and the UN system.

The Washington Consensus is said to promote liberal democratic forms of government, the Rule of Law, an independent judiciary, an autonomous police service and civil administration, a pivotal role for private enterprise in the economy, free and open global markets, promotion and protection of fundamental human rights and freedoms and limiting the role of the state.

On the other hand, the Beijing Consensus is authoritarian government, statist values to the forefront, state-controlled enterprises controlling the heights of the economy, the Rule by Law, a judiciary, administration, police and in China’s case, even the army, subject to the Executive, in that case the Communist Party of China. The Beijing Consensus puts state and community rights ahead of individual human rights and freedoms, which are suppressed.

Recent developments in China has shown that the Communist Party has become aware of the dangers of giving local party cadres the power to dominate the Judiciary at the local level, and the abuse of power which results and has taken this power of supervision away from local party cadres and given it to provincial party cadres.

This is just changing pillows to cure a headache; as long at the State has the right to prevent the Judiciary from giving independent findings over a dispute between citizens or the citizen and the State, the citizen’s rights will not be protected. But at least there has been some change in the attitude of subordinating the judiciary to party cadres, albeit only at the local level.

China’s economy

China’s economy has been growing at double digit rates over the last few years, although just now there is a slowdown due to the collapse in the European and America economies.

Annually around September, the Hurun Report is published in Shanghai by a luxury publishing and events group; it is a compilation of China’s wealthiest people. The report reflects important trends in the Chinese economy. Seven of the listed members have been named as delegates to the Communist Party Congress. These are the Red Capitalists whom the Communist Party of China is assiduously cultivating, successful businessmen who also are enrolled into the Communist Party and given positions, to give capitalism a ‘Chinese Communist Face’. Whatever the underlying principles of the Beijing Consensus, in China, today, non-State-owned businesses are prospering, while State-Owned Enterprises are in retreat.

Over the next few years China will undergo a huge demographic shift. The proportion of people over 60 in the total population will increase from 12.5% in 2010 to 20% in 2020. A report by the Chinese Academy of Social Sciences says that China’s ‘demographic dividend’ – the availability of lots of young workers, which helped fuel economic growth – will soon disappear.

Many Chinese are now familiar with the concept of the ‘Lewis turning point’, named after an economist from St. Lucia, in the Caribbean, Arthur Lewis, who said that industrial wages will start to rise quickly, when a country’s rural labour surplus dries up. Already this has been seen in China; manufacturing industries are moving away from the coastal areas where they were first promoted, as rural migrants no longer leave their villages and migrate to work in the sweat shops on the coast. Factories are being moved inland, where labour is more plentiful.

However, the new system by which farmers are allowed to market their surplus produce on their own has seem a rise in rural small farm incomes and such agriculturalists are reluctant to work long hours in factories. The one child policy implemented for many years has resulted in a fast-rising population of retired people, whose pensions will have to be paid for by taxes raised from a shrinking pool of current workers. A big increase in the age of retirement in China is long overdue. The official retirement age of 60 for men and 50 for women was fixed in 1951, when the average life expectancy in China was 46, compared to today’s 73.

China learning to be a great power

Zhu Feng, an international affairs expert at Beijing University, has said: “We are the 800-pound gorilla in the room. China is learning to be a great power.” Teufel Dreyer, a Professor at the University of Miami says, of China: “There is a debate at the top. Some leaders assert that China must assert its interests in a more straightforward way to get its hands on resources it needs to power its economy. Others say the country must continue to give priority to domestic development and solving internal social challenges.”

Recently Red Princeling and former Chairman of a State-Owned Company, Qin Xiao, now heading an independent think tank – the Boyuan Foundation – made a speech at one of China’s most prestigious universities, Tsinghua, accusing the party hierarchy of replacing the enlightened values of democracy, freedom and individual rights with ‘Chinese’ ones such as stability of the status quo and the interests of the State being paramount.

Qin founded the Boyuan Foundation in 2007, together with investment banker and Red Princeling He Di, saying that “China needs someone to stand up and speak”.

Quin, in an interview with a newspaper published in Guangdong Province, the Southern People’s Weekly, said: “The Arab Spring showed that no matter how well a country’s economy performed, people will not accept dictatorial, corrupt government.” Also Wang Changjian, a scholar at Communist Party’s training academy for cadres, has pointed out that there seems to be a phobia against political reform.

Universalists vs. Exceptionalists

In China the battle lines are clearly drawn between the Universalists, who believe China must eventually converge on democratic norms, including the Rule of Law, and the Exceptionalists, who believe that China must preserve and perfect its authoritarianism, including the Rule by Law.

While Qin and the Boyuan Foundation represent the Universalists, Zhang Weiwei represents the Exceptionalists. Zhang recently wrote China’s evolution should be “as if the Roman empire had never collapsed and had survived to this day, turning itself into a modern state with a central government and modern economy, combining all sorts of traditional cultures into one body with everyone speaking Latin.”

This Exceptionalist point of view, which is a confluence of nationalism, rapidly-growing military capability and deeply-held feelings of victimhood, are worrying. However, Chinese officials keep articulating the need for a ‘Harmonious world’ and decry the use of military force to resolve disputes.

It is interesting to see where China will be in two decades’ time. Will the Exceptionalists carry the day and will China end up with the Communist Party running an authoritarian government Ruling by Law, with scant respect for fundamental human rights and freedoms, or will the Universalists win through and will China end up a rich and affluent nation, with a democratised form of government, allowing its people the choice of choosing rulers, albeit from within the Communist Party cadres only, but respecting some aspects of Rule of Law?

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Latest comments

  • 1
    0

    We Also have a Pilfering Dynasty on the Making in Sri Lanka.

    With so many Court Jesters Called
    Ministers, Secretaries, IGPs And Advisers,sucking blood of Masses,
    who do Heroin Businesses, Thuggrys, Abductions, prostitution, Ransoming. rearing sex maniac Brats.
    And paid commenters and news editors to web sites with instruction from pilfering Dynasty.
    .

  • 0
    0

    “scholars believe greater judicial independence is crucial if China is to tackle endemic corruption, improve governance and put the economy on a more sustainable growth path “
    Does the author have a kind of China fixation. The HRW that is mentioned was not in evidence when the ‘Occupy Wall Street’ campaign was on in the USA. Under George Bush protesters were corralled into suburban areas where they would be unseen and unheard when he was in town.
    Corruption in China is abhorred, and serious efforts are made to rid the nation of it. Death sentences are handed out not infrequently to dissuade would be perps. Wall Street and City of London corruption too is rampant as we’ve seen recently, but the perpetrators are immune from prosecution, protected by the ‘regulators’ who later on in life are rewarded with well paid jobs in the very same institutions that they FAILED to regulate. When they are caught red-handed, they may not even appear before a judge, (unlike in China), protected by the Attorney Generals Dept. All this in the most highly paid segment of society. In fact the Deputy Governer of the Bank of England said recently that large bonuses are an essential element of bank wages in order to prevent corruption. In fact it has had the exact opposite effect. Take your pick, as to which system is the better.

  • 0
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    Unlike the Chinese we had the colonials give us western concepts of law and democratic politics.There were aberrations and they were remedied where ever the light was shone.Unfortunately for Srilanka the breakdown of the law started with Sirimavo and has accelarated to high levels by the present regime whose only intention is to remain in power for ever, they think.The village idiots and their cohorts who cling on for personal gain are the bane of the country that has so much potential for the wellbeing of the majority.The lawlessness in Srilanka is scary.
    One can see the signs of a consolidated dictatorship by the Mohan Pieris court judgement where opinions are solicited like a consultantcy rather than the principles of law.What happened to S.L. Gunasekara and Gomin. Dayasiri? they are silent in this travesty unlike Sarath.Silva who atleast is making known his misjudgements belatedly.

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