17 June 2007

China and the Rule of Law--The Problem of Coming to Grips With Modernity

One of the things that separates China from modern nations, is the lack of "rule of law." While in China power flows from the Communist Party downward, in modern nations even the leadership is constrained by the law. Although it can be said that China has made some progress from this:
In a society where all economic activities were organised and managed by the government and where economic entities were seen as players in state operations, economic laws were not needed. In a society where the government is all encompassing there was no soil for administrative laws to take root as government rules and regulations took their place. Under the philosophy that the government represents the people, internal government procedures regulated conflicts between the government and the individual, not laws.
Even so, it is still the case that
China has an authoritarian political system controlled by the Communist Party. Party committees formulate all major state policies before the government implements them. The Party dominates Chinese legislative bodies such as the National People's Congress (NPC), and fills all important government positions in executive and judicial institutions through an internal selection process. Party control extends throughout institutions of local government. Chinese authorities have ruled out building representative democratic institutions to address citizen complaints about corruption and abuse of power, and instead are recentralizing government posts into the hands of individual Party secretaries. The absence of popular and legal constraints to check the behavior of Party officials has led to widespread corruption and citizen anger. The Party has strengthened the role of internal responsibility systems to moderate official behavior, but these systems have provided some local Party officials with new incentives to conceal information and abuse their power.

The Chinese government has vowed to weed out the corruption of local Party officials, but there are many problems preventing intelligent persons from taking these vows very seriously.
The following are the most glaring weaknesses of the Chinese legal system today. First, lack of judicial independence. The court system is controlled by the Chinese Communist Party and local governments. Judges are appointed by the party and local governments, judges lack job security and power to adjudicate court cases. The courts are dependent on local governments for funding. Party and government officials routinely interfere in court decisions. Second, weak judicial authority. Because Chinese courts are really part of the state bureaucracy they typically lack the political authority to enforce their decisions. As a result court judgments cannot be enforced if they are resisted by local authorities.

Third, judicial corruption, the political control over the court system has led to widespread corruption in the legal system. Unethical judges routinely take bribes in exchange for judgments favoring those who offer the bribes. Chinese press often carries reports of senior judges being prosecuted for corruption. Finally, no respect for the law. This is largely because laws on the books in China are not enforced or are ignored by the government itself in reality. This has created a huge discrepancy. While a large number of Chinese laws have strong provisions for individual and property rights, in reality such provisions have little meaning because the government, especially local authorities, can ignore them with impunity.

Worsening the rule of law in China is the fact that many in China see smuggling, bribes and piracy as victimless crimes, and thus tolerated. (Bribes and success mean almost the same thing.) The gap in perceptions highlights the difficulties the Chinese government faces as it tries to curb corruption. As China is becoming a leading global trading partner, the lack of law among the government and the citizens is also becoming an important problem worldwide. This problem must not be ignored.

China will not have realized the rule of law until senior Party and government officials feel constrained by the law and adapt their behavior accordingly. Given that the emergence and development of rule of law in China has been to a considerable extent a top-down, government orchestrated movement largely in response to urgent economic needs, it remains to be seen whether the ruling regime will continue to support the development of rule of law when it seriously impinges on its authority and power.

...Clearly, the Party will not tolerate threats to its existence and will shove law aside if necessary to quash any perceived threats, as evidenced in the recent campaign against Falungong and the unrelenting persecution of political dissidents and any group that advocates major political change. Further, despite improvements in the various mechanisms for reining in government officials, in practice government officials are often beyond the law's reach for a variety of reasons, including the weakness of the judiciary.

Ultimately, the issue is one of power. How does the legal system obtain sufficient authority to control the Party when the Party has hitherto been above the law? How is power to be controlled and allocated in a single party state? In a democracy, the final check on the ruling party's power is the ability of people to throw the ruling regime out and elect a new one. In the absence of genuine multiparty democracy, implementation of the rule of law in China depends on the voluntary compliance of the Party; it requires the Party to abide by the law even though doing so may jeopardize the Party's ability to continue to rule. Although there may be various pressures on the Party to accept the binding force of law, in the end an authoritarian regime must either voluntarily relinquish some of its power or else have it taken away by force.

Naturally, Party leaders will resist giving up power so readily.

China's leadership appears very insecure, and jealous of power. Consider this:
The communist regime in Beijing explodes every time a country ventures even mild criticism about China’s appalling human rights record, screaming “interference” in its domestic affairs.

....The bully boys in Beijing are showing their true colours by threatening the Howard Government and other political leaders.

The threats about “maintaining healthy Sino-Australian relations” are not only unacceptable, they are hollow.

The concepts of freedom and democracy clearly do not sit well with the communist regime.

Or this:
So far, China has benefited by eliminating the totalitarian economic controls from its Communist past—but it has not succeeded at implanting the capitalist cornerstones of honesty, enforcement of contracts, respect for property rights, and the rule of law. Thus, the usual advice given to Westerners who want to do business in China is: don't trust anyone.

That is what is holding China back—and if it wants to continue to thrive on international trade, the Chinese government is going to have to establish the honesty and trust that is possible only under the rule of law.

In reality, there are a huge number of problems that cannot be mentioned here. Problems with China's Communist authoritarian government that suggests that it will be able to go so far---and no further.

It is good to be optimistic about the future of a country, particularly a country with as large and dynamic a population as China. But it is even better to face unpleasant facts and take them into account, in your assessment.


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“During times of universal deceit, telling the truth becomes a revolutionary act” _George Orwell

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