In China, Justice in Reverse

By James V. Feinerman
Thursday, December 18, 2008

Thirty years ago this week, the epochal Third Plenum of the Eleventh Communist Party began the process of making the Chinese people far freer economically and politically than previously imaginable. Sadly, on this anniversary, the trends set in motion then appear to be reversing -- with ominous implications for China and the global community.

In 1978, Deng Xiaoping announced, along with other significant changes, a new legal policy summarized in 16 Chinese characters: "There must be law to rely upon; these laws must be followed; enforcement must be strict; violations must be corrected." Deng's goal was to change the system, redress Cultural Revolution abuses and support ambitious economic reforms. Within months, China enacted its first criminal codes and a foreign joint-venture law. For a quarter of the world's people, this was momentous political upheaval.

Since that time, China's legal development has been inconsistent. While commercial and administrative law developed considerably, China's stunted judicial system remained pervasively corrupt and ineffective. Individual political prisoners, targeted religious and ethnic groups, and ordinary citizens continued to experience unlawful abuse. Free expression lacked protections; arbitrary arrests and detentions persisted. Yet, until the past few years, it could be argued that China's post-Mao legal order kept on getting better. Progress even resumed soon after the massacre in Tiananmen Square in 1989 and lasted more than a decade. China's opening to the outside world revealed lingering abuses and provided new avenues for external pressure. Overall, the trajectory was positive.

For several years now, however, there has been considerable backtracking. Setbacks in the rule of law have occurred in many areas. Most significant has been the systematic intimidation and prosecution of the few Chinese lawyers willing to represent unpopular clients in politically sensitive cases. Defense lawyers have been "warned," placed under house arrest or imprisoned on trumped-up charges. Some have even been beaten and severely injured as warnings to others.

One prominent example, Gao Zhisheng, is a Beijing lawyer who defended underground Christians, Falun Gong practitioners, dissidents and detained lawyers. In 2006, Gao was convicted of "inciting subversion" and sentenced to three years' imprisonment. Previously, he served periods of house arrest and detention and faced harassment; his license to practice law was revoked, and his firm was shut down. In 2007, his open letter to the U.S. Congress seeking expressions of concern about Chinese human rights before the Beijing Olympics led to his being abducted and, reportedly, tortured.

Today in China, tens of thousands of incidents ranging from isolated protests to widespread riots requiring police and paramilitary intervention occur annually. These stem from the failure of the legal system to address unauthorized land seizures, illnesses and deaths caused by contaminated products, and environmental disasters that result from China's rapid, unregulated industrialization and that affect millions of citizens. Absent opportunities for redress in the country's tightly controlled lower-level courts, few peaceful alternatives to violent disturbances exist for airing grievances.

This year, the well-educated reformer heading China's judiciary was replaced by a new Supreme People's Court president who is neither a lawyer nor a judge but a former police official and party apparatchik. Only last week, activists were detained for using the 60th anniversary of the United Nations' adoption of the Universal Declaration of Human Rights to release "Charter 08," a petition recommending constitutional reforms to make the ruling Communist Party more accountable. Liu Xiaobo, imprisoned 20 months for joining students in the Tiananmen Square protests, was arrested for "inciting subversion of state power."

Before recent reversals, China still had far to go to become a "country ruled by law" -- a goal enshrined in its constitution since 1999. Nonetheless it had ceased to be the totalitarian dictatorship of the Maoist era. Now, the Chinese rule-of-law experiment is at a crossroads. Is it merely experiencing delay on the road of progress, or will repression get the upper hand?

The answer is crucial, and not just for the Chinese. Many developing countries see China as a model for political and economic development distinct from Western neoliberalism. Authoritarian regimes and weak democracies hope to copy China's economic success but may misconstrue lessons about political and legal reform. As worldwide recession affects China, further retrogression is possible if the regime, feeling threatened, suppresses dissent. China's leaders should reflect that a people accustomed to both rising living standards and greater political freedom could react badly when their expectations are upset. Should current trends persist, not only the Chinese people but also the rest of world may have much to lose.

The writer is a professor at Georgetown Law School and co-director of its Asian Law and Policy Studies program .

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