Li Shuguang, 32, a constitutional law expert at the University of Politics and Law, has firsthand experience with China's brand of the "rule of law."
As a 19-year-old law student, he served as judge in three real-life court cases. For him, it was moot court; for one of the defendants in a corruption case, it meant four years in jail. There was, Li recalls, no defense lawyer until the day before the trial. It didn't matter. He decided the case in advance.
Seven years later, Li was arrested in the crackdown on democracy activists after the 1989 Tiananmen Square demonstrations. In repeated rounds of questioning, he told Chinese police his arrest was illegal; they told him they did not care. After spending 10 months in jail, he was released.
Today, Li is part of a wide movement -- including dissidents, businessmen and some senior government members -- aimed at ensuring that laws are supreme and serve as a check on the nation's rulers rather than as tools they can manipulate. At present, the Chinese Communist Party effectively rules by proclamation and serves in legal cases as prosecutor, judge and jury.
China's future depends on "the establishment of rule of law, an improved legal system, using the law as the ultimate authority and the earnest safeguarding of democracy and human rights," said a petition signed by more than 20 leading political dissidents last week and sent to the National People's Congress, China's legislature.
Driven in part by the need for rules to guide the rapidly developing and increasingly complex economy, and in part by a desire for political stability after 90-year-old senior leader Deng Xiaoping dies, Chinese leaders say they also support the establishment of the rule of law. Recently, President Jiang Zemin attended a day-long seminar on the topic.
Much of the talk emanates from the National People's Congress, which begins its annual three-week session today. The traditionally rubber-stamp legislature will consider new laws on subjects ranging from stock trading and central bank intervention to birth control and the prison system.
"We must attach great importance to building a socialist legal system and strive to attain the goal where . . . laws will be followed, laws will be strictly enforced, and lawless conduct will be prosecuted," said congress Chairman Qiao Shi in September at the 40th anniversary of the congress's founding.
But the gap between legal theory and practice is illustrated in the effects of one law that permits citizens to submit petitions to the congress. At least in theory, that should protect the dissidents who filed four petitions to the legislature last week, asking for the abolition of labor camps, establishment of the rule of law and a crackdown on corruption. "The recent petitions could never have happened before," Li said.
A spokesman for the congress said on Saturday, however, that it will ignore any petitions from dissidents deprived by law of their political rights, and he raised suspicions about their motives in making their appeals public. "Long before these people mailed their petitions, they disseminated their ideas and suggestions to overseas news media to play up this issue," Zhou Jue said, according to the Reuter news agency. "It is not difficult to see their real motives," he said, without elaborating on what those motives might be. The concept of the rule of law has been a flimsy one in China. For most of the period since the 1949 Communist takeover, the law has either been ignored or treated as a malleable implement in the hands of Communist Party leaders for keeping the population under control.
Even now, Qiao's notion of the law differs from that held by government critics and ordinary citizens. "Chinese leaders want rule by law, not rule of law," Li said. The difference, he said, is that under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses people in a legalistic fashion.
"There are good laws and there are bad laws," Li said.
Unlike the United States, China has no provision by which laws can be declared unconstitutional. The 1982 constitution, China's fourth since the Communist takeover, contains guarantees of rights to education, work, assembly and free speech, but it also contains Deng's "four cardinal principles" guaranteeing Communist Party "leadership" and control.
Nonetheless, many lawyers here say they detect a change in society's attitudes toward the law. A Beijing-based American legal expert said that "although China remains far from a rule of law, law is assuming greater and greater importance, and not just in economic transactions. There is a growing consciousness among ordinary Chinese that law can be invoked as a means of protecting rights and interests."
Several recent cases support this view:
* In December, the wife of one of China's leading dissidents demanded -- and received permission for -- a court hearing on what she said was the wrongful sentencing of her husband to three years in a "reeducation through labor" camp. As of now, he remains in custody, but she has vowed to battle on through the courts.
* In a town in Shanxi, a profitable company ordered by central planners to merge with a money-losing firm refused and filed suit against the government instead.
* In Wuhan, China's first public-interest law center has been helping women, the handicapped and children sue government agencies for benefits and rights.
* In Beijing, the one-year-old intellectual property court is clogged with cases brought against pirated copyrights, trademarks and patents. Part of the recent agreement between the United States and China over the protection of intellectual property was designed to make the Chinese court system a more effective weapon for individuals and companies seeking to protect their products. Just as significant, however, are the many cases brought by Chinese companies ranging from book publishers to computer software writers.
Even though most of these cases are not explicitly political, they are part of an important political phenomenon that has to do with bread-and-butter issues as much as any lofty principle, many lawyers argue.
"People want better economic lives, and as they get more money they want to protect what they've earned," Li said. "They don't want another Cultural Revolution where someone can come along and take those things away."
During the 1966-76 Cultural Revolution, Communist Party Chairman Mao Zedong, his wife and a small group around them ruled the country through a combination of military and mob rule. Millions of people were hauled before crowds, condemned, killed or banished. China's president died in jail. Deng himself was sent to work in a factory far from Beijing.
Many of today's leaders and senior civil servants suffered arbitrary arrest, humiliation or banishment during the Cultural Revolution and are eager to avoid a repeat performance.
Even the most sanguine analysts, however, note that China has a long way to go before the rule of law becomes an accepted and respected way of governing.
For many leading dissidents, for example, laws do not seem to apply. In several instances, the government has found legalistic ways of accomplishing the same thing it once did simply by declaring someone a "counterrevolutionary." Several outspoken critics of the government have been jailed on charges ranging from forging a university stamp to having a child out of wedlock.
When all else fails, the four cardinal principles upholding party rule can be used. At a closed trial in December, a former lecturer at Beijing's Languages Institute, Hu Shigen, was sentenced to 20 years in prison for passing out handbills advocating political reform. The indictment charged him with advocating "the overthrow of the leadership of the Communist Party and the socialist system."
Dissidents who sue the government make little headway. A Chinese court rejected without a hearing a case brought by exiled labor activist Han Dongfang, who was seeking to challenge the government's revocation of his passport so he could return to China.
"In a place like China, with a despotic tradition, an elaborate legal code serves as a more sophisticated instrument of rule by the government," said Robin Munro, Hong Kong representative of Human Rights Watch/Asia. "It has meant a shift from what Max Weber would have called charismatic rule by Mao to a more bureaucratic method. But the criminal legal system is still a one-edged sword that only cuts downward."
Many business executives in China feel the same way when it comes to enforcing contracts or pursuing intellectual-property pirates. In a recent U.S.-China trade dispute over intellectual property, a major stumbling block was China's assertion that its laws gave adequate protection.
"China has made great progress in passing anti-piracy laws," said John Bliss of the International Anti-Counterfeiting Alliance. "But enforcement is where we have a problem." Chinese judges are not versed in the new laws and often do not want to cause problems for local business interests. Even when they have ruled in favor of plaintiffs, the damage awards have been what one American lawyer here called "derisory" and insufficient to cover legal expenses or to serve as a deterrent for future lawbreakers.
Corrupt judges are another major problem. Chinese lawyers say they often feel pressured to make payments or otherwise curry favor with judges. Many analysts say the homage paid to the rule of law by Chinese leaders is simply part of the political maneuvering for power in the post-Deng era.
The party leadership wants to appear sensitive to the widespread discontent about public corruption, which party chief Jiang has called a "virus" that threatens Communist rule. Last month, the government published regulations enabling the public to sue police who break the law or neglect their duties. Many see the enthusiasm for lawmaking at the congress as a power play by congress chairman Qiao. Many of the proposed laws would cut into the turf now held by Vice Premier Zhu Rongji, who is also the governor of the central bank. The laws would compromise the independence of the central bank, dabble in securities regulation and influence state enterprise reform. In many of the areas, the legislature would undermine China's most far-reaching economic reforms.