The PRCs Legal System - Essay Example

1) Western Scholars differ in their assessment of whether or not the PRC’s legal system is converging towards a rule of law. Many commentators have argued that China has yet to develop a rule of law system. DISCUSS The Cultural Revolution in China and Deng Xiaoping’s ambitions to modernise China, brought the issues of legal reforms and the rule of law to the fore (Clarke, 2008). Indeed, Chinese media propaganda continually refers to the rule of law as an entrenched part of Chinese culture (Clarke, 2008). However, the concept of China and its relationship with the rule of law has fuelled academic debate with many Western scholars finding the notion hard to grasp. On the one hand, investors and human rights activists advocate a critical indictment of the distinct absence of the rule of law in China. Indeed Pei extrapolates the concept of a “trapped transition” whereby the political strategy impedes the necessity of moving towards a true rule of law in order to achieve the modern economic goals China has set itself (Pei, 2008). Conversely, some legal commentators consider whether China is or should even move towards a rule of law (Perenboom, 2002). Moreover, some posit that China’s advocacy of a rule of law system is merely a veil; intended to facilitate foreign investment arguing “just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians” (Peerenboom, 2002). Conversely, the response to this slightly cynical approach is the proliferation of Foreign Direct Investment into China with some touting China’s broad ranging agreement with President Clinton in the 1990s as a rule of law driven initiative, which in turn triggered the legal and judicial co-operation programme between EU and China in 1998 (MacFaruquhar, 1997). The focus of this analysis is to critically evaluate whether China’s legal system is converging towards a rule of law system and consider the wider issues raised by China’s legal system in this context. Firstly, it is important to consider the definition of the rule of law. As a political concept, Peerenboom argues that the rule of law is an “essentially contested concept” (Peremboom, 2002). Nevertheless, the basic consensus about the rule of law is with regard to its core meaning and fundamental elements, which is to offer a system in which the law is able to impose meaningful restraints on the state and individual members of the ruling elite, as captured in “the rhetorically powerful if overly simplistic notions of a government of laws, the supremacy of the law, and equality of all before the law” (Perenboom, 2002). Moreover, in considering whether China’s legal system has moved towards a rule of law, it is necessary to evaluate the political structure. It is further submitted that the starting point for the rule of law in any meaningful way is the separation of powers, which is viewed as fundamentally important to the operation of “democracy”. The principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers” (1978). Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely” (1887). Accordingly, the preservation of separation of powers is essential as a check on autocratic power (Dingjian, 1995). The Chinese political structure is divided into six levels of government structure; central, province, municipal, country, village and town (Chow, 2003). The administrative power remains with the Central People’s Government (PRC) and local people’s government at various levels (MacFarquhar, 1997). The National People’s Congress is the highest state organ in the country having exclusive state power such as legislation, establishing and organising other state organs at the central level, appointing important leaders of the country and supervising the work of other state organs (2003). The local people’s congress operates at different levels with certain legislative power. However, notwithstanding the apparent governmental structure, the NPC’s decisions are paramount as evidenced by criticisms of the previous criminal procedure law and criminal law of the PRC pre-1996 (Clarke, 2008). Whilst in 1996 and 1997, an ostensibly significant overhaul was undertaken of the criminal procedure law and criminal law, it has been argued that whilst this an apparently moderate step towards improving the criminal justice system in China, the “outcome is mainly a result of major compromises with opposing views and arguments among scholars, officials and different forces in the Chinese legal system” (Clarke, 2008). Previously, the procedure was vague and plagued with repeated criticisms on grounds of human rights abuses, particularly in respect of due process principles such as the presumption of innocence, judicial independence and the right to legal counsel (Clarke, 2008). This was compounded by politically motivated decisions of NPC standing committee issued to address publicised anti crime campaigns, which highlights the inherent paradox in the Chinese political framework and the efficacy of any notion of the rule of law within the theoretical ideal (Pei, 2008). Moreover, the NPC’s control of the lower organs of state proves a central stumbling block for China’s move towards a rule of law (Pei, 2008). This further supports Pei’s assertion that the gradual development of Chinese legal reforms are intrinsically limited for being partial and self-limiting and “calls into question the hopeful view that rapid growth will ultimately generate political reform” (Pei, 2008). As such, this undermines the notion of China’s legal system converging towards any rule of law. Indeed, under the NPC umbrella, there are three further branches; namely the state council, supreme people’s court and supreme people’s Procuratorate (Pei, 2008). The state council is the highest administrative organ and within this there are numerous commissions and bureaux responsible for administration all effectively answerable to the NPC (Chen, 2008). Furthermore, the PRC’s constitution grants the state council legislative power to make administrative regulations and its ministries commission can administer administrative rules (Chen, 2008). Moreover, all the laws and administrative regulations are mandatory for the People’s Court to follow but can theoretically be subjected to the administrative litigation process (Chen, 2008). Moreover, constitutionally there appears to be a separation of powers, which would support the notion of China converging towards the rule of law as the Supreme People’s Court is asserted as being independent (Chen, 2008). However, this “independent” judicial system is unique in being comprised of the people’s courts, people’s procuratorates, security, state security and the administration of justice, all of which are answerable to the NPC (Pei, 2008). Additionally, the People’s Court is responsible for exercising power and has the power to issue judicial interpretations relating to legal rules in the course of their adjudication or legal supervision work (Chen, 2008). Moreover, Article 131 of the Constitution provides that “people’s procuratorates is the state organ for legal supervision and shall exercise procuratorial power independently and are not subject to interference by administrative organs, public organs or individuals”. Under Article 129 of the Constitution, the People’s Courts are “state organs for legal supervision”. Moreover, Article 5 of the Organic Law states the functions and powers of the people’s procuratorates at all levels and stipulates that they have to exercise supervision over judicial activities of the people’s courts and ensure conformity with the law and review cases. However, whilst the Constitution is considered paramount law, the peculiarity lies in the fact that it cannot be quoted in judicial verdicts and administrative decisions as a legal ground (Clarke, 2008). In the judicial sense, the concept of “law” refers to all legal documents collected by the NPC and its Standing Committees as belonging to a category of laws and therefore divided into those enacted by the NPC and those enacted by the standing committee, which will impact a certain area only (Chen, 2008). To this end therefore, the judicial framework appears to effectively circumvent the rule of law provisions in the Constitution as the judiciary obtains its power from the NPC (Pei, 2008). As such there is a distinct overlap of functions between the various arms of the political framework, which should be separated for the effective application of the separation of powers and the rule of law. Moreover, Franz Michael argues that the “rule of law” is the very foundation of human rights and in Western legal tradition; it is applied equally to all and binding on the lawgiver and is meant to prevent arbitrary action by the ruler in its theoretical idealistic sense (Michael, 1988). Michael further extrapolates that the rule of law in its correct application guarantees freedom for political members, which is essential as a safeguard against tyrannical oppression and regulation of human relations within a community. It is precisely this basis, which lends support to Pei’s emphatic refusal of any argument purporting to depict China’s legal system converging towards the rule of law. Indeed, Chang specifically refers to Pei’s arguments in asserting “big trouble looms for China. Continued progress toward a modern economy will require the establishment of a true rule of law, which in turn will require “institutional curbs” on governmental action. These two limitations on power are incompatible with the party’s insistence on dominating society. So long as the current political framework remains in place, then China, is effectively and perhaps fatally trapped in its state of transition” (Pei, 2008). As such, it would appear that for China ‘s convergence towards a true rule of law is inherently dependent on a significant overhaul of its political system. Moreover, whilst the Constitution advocates the rule of law, the precedence of NPC laws undermines the rule of law (Peerenboom, 2002). As such, this supports the argument that for China, the rule of law became a significant tool of political and legal propaganda and infrastructure development since the 1970s reforms (Pei, 2008). Indeed, the “rule of law” is clearly expressed in the Third Plenum of the Eleventh Party Congress statement in 1978 that is “there must be laws for people to follow, these laws must be observed, their enforcement must be strict, and law breakers must be dealt with”. Furthermore, the legal system as demonstrated above; whilst advocating independence, is ultimately under the control of the NPC, which in turn is controlled by the PRC; which begs the question as to whether the constitutional structure of the PRC can ever facilitate a genuine move towards the rule of law (Pei, 2008). In the current PRC structure, effectively they are applying their version of a rule of law however the idealist notion of the rule of law depends on government adherence to the rule of law, which clearly creates a paradox with the political framework of China (Pei, 2008). Conversely, in Western legal theory, the rule of law is applicable to every social member governed by law, including rulers and the ruled with everyone being equal before the law: “Law and the state are nothing but the coercive expression of economic power enjoyed by the ruling class. In the Chinese socialist state, as long as classes exist, law could only reflect the will of the Communist Party, the vanguard class. In this regard, law is taken as a “tool of state administration”(Pei, 2008). The Chinese Communist Party is the leading political party and exercises control over the National People’s Congress with its authority often reaching beyond the state system (Peerenboom, 2002). Moreover, Xiaoping argued “very often what leaders say is taken as law and anyone who disagrees is called a lawbreaker” (1984). However in the past the party policy was conceived as more important than law and seen as an instrument to achieve party policy. This is further evidenced by the practical implementation (Pei, 2008). For example, in the leading widely publicised case of the disgraced democratic party leader Mr Ho Wai To, (who was arrested for having a sexual relationship with a prostitute), the comments of the representative lawyer indicated that punishment in the Chinese legal system was effectively based on public security and not the case itself (Clarke, 2008). This is further evidenced by glaring discrepancies in punishments in different areas with the lack of precedent as a check on undue political influence on the judiciary (Chen, 2008). Furthermore, if considered in context of the gradual evolution of the rule of law, the legal framework of the Chinese legal system clearly undermines the classic statement underpinning the necessity for separation of powers was made by Montesquieu: “Again, there is no liberty if the power of judging is not separated from the legislative and the executive”(1748). Moreover, the fusion of the Executive and Legislative has undermined the democratic ideal of separation (Dingjian, 1995). Nowhere is this more evident than the fusion between the Executive and Legislative in China (Pei, 2008). Moreover, it has been posited that the rule of law is far removed from the Chinese tradition of Confucianism and Communism (Bell, 2008). Bell specifically refers to China’s historical adherence to Confucius’ argument that “if you try to lead people by regulation and order them by punishment, the people will evade these and have no sense of shame (in doing so). If you lead them by virtue and order them through rites, they will have a sense of shame and will correct themselves” (in Bell, 2008). From a historical and cultural perspective, the law in China has operated to implement the control of one party over another and an effectively totalitarian government. Secondly, from an alternative viewpoint, Chinese law can be ideological as opposed to being representative of the populace, which is further compounded by issues regarding freedom of speech, thereby highlighting an inherent paradox in the Constitution and the practical implementation of the rule of law (Chen, 2008). Accordingly, there is no doctrine of separation of power in the Chinese legal system, which is a distinct feature of the unique political environment and the most powerful political party is the Communist Party (Pei, 2008). Therefore, notwithstanding the 2008 State Council Information Office’s publication of a White Paper published on China’s rule of law asserting that “the rule of law signifies that a political civilisation has developed to a certain historic stage….. the Chinese people ….know well the significance and value of the rule of law, and thus cherish the fruits they have achieved in building China into a country under the rule of law”; the fact that the majority of powerful positions in the administrative, legislative and judicial power are held by Party members undermines any notion of “separation power” in China (Pei, 2008). As such, it would be too strong a preposition to argue that China is truly converging towards a “rule of law”. This is further evidenced by the relationship between the PRC and various government organs. Theoretically, the PRC has no ostensible authority to interfere with these government organs, however each body is accountable to the PRC, which clearly controls all organs through the legislative system (Pei, 2008). Therefore clearly all these powers are interrelated and the separation of the legislative, administrative and judicial power arguably is symbolic at a functional level only, further supporting the trapped transition argument in explaining the relationship of China’s legal system and the rule of law. Indeed, this fits into the Western argument regarding the lack of the rule of law in the contemporary Chinese system. Indeed, Clarke propounds the shortage of trained legal workers, lack of precedent in the Chinese legal system and the CPC’s superior position over law as prime evidence of this (Clarke, 2008). Moreover, the lack of a meaningful rule of law has further created scepticism among scholars on issues regarding China’s active involvement in international commerce, which raised serious concerns regarding China’s membership of the WTO (Pei, 2008). Alternatively, Peerenboom argues that the rule of law can be split into the liberal democratic version of free market capitalism and multiparty democracy on the one hand, state socialist rule of law as extrapolated by Jiang Zemin and other Statist Socialists, which sanctions the concept of a state centred rule of law; which in China means a market based economy rooted in socialist norms of public ownership and a non-democratic party system (Peerenboom, 2002). Peerenboom argues that whilst this is clearly not a rule of law in the liberal sense, the transition of China’s political framework suggests a move towards a narrow socialist rule of law as the Party constitution and the 1982 constitution confirm basic ideals of a government of laws, the supremacy of the law and equality of all before the law (Pereboom, 2002). However, whilst in one sense this can clearly be viewed as a move towards the rule of law from a socialist centred rule of law perspective, any effective rule of law is dependent on effective enforcement, which is sporadic and inconsistent at present (Chen, 2008). Whilst a detailed review of each aspect of the Chinese and legal system is outside the scope of this analysis, the above discussion highlights that notwithstanding the apparent and gradual attempts to move towards a rule of law, rather than a convergence towards such a system, the current framework would suggest that China’s legal relationships is in a state of “trapped transition” as regards the rule of law. Moreover, in line with Pei’s arguments it is submitted that a move towards a true rule of law is inherently dependent on an overhaul of the one party political system of China. BIBLIOGRAPHY David Bell (2008). China’s New Confucianism: Politics and Life in a Changing Society. Princeton University Press. Jianfu Chen (2008). Chinese Law: Context and Transformation. Brill Academic. Daniel. K. Chow (2003). The Legal System of the People’s Republic of China. West Group Publishing Donald Clarke (2008). China’s Legal System: New Developments, New Challenges . Cambridge University Press. Cai Dingjian (1995). Constitutional Supervision and Interpretation in the People’s Republic of China. Journal of Chinese Law. Volume 9 Roderick MacFarquhar (1997). The Politics of China. Cambridge University Press. Franz Michael (1988). Law: A Tool of Power, Human Rights in the People’s Republic of China. Westview Press. Montesquieu (1748)“The Spirit of Laws” reported (2002) Prometheus Books, Minxin Pei (2008). China’s Trapped Transition: The Limits of Developmental Autocracy. Harvard University Press. Randall Peerenboom (2002). China’s Long March Toward the Rule of Law. Cambridge University Press. Deng Xiaoping, (1984). Emancipate the Mind, Seek Truth from Facts and United as One in Looking to the Future. December 13th 1978, in Deng Selected Works of Deng Xiapoing (1975-1982). Foreign Languages Press. White Paper on China’s rule of law available at www.china.org.cn Read More