Trials and Errors: A Roundtable on Law, Reform, and Repression in China

Trials and Errors: A Roundtable on Law, Reform, and Repression in China

Early in 2013, as Xi Jinping prepared to take over leadership of China, some high-profile Western analysts were cautiously optimistic about where the country was heading. But far from bringing a longed-for “easing” of controls on expression and civil society activities, the Year of the Snake often saw the ratcheting up of mechanisms of control and intimidation. As we move into the Year of the Horse, Jeffrey Wasserstrom brings together four legal experts to discuss.

A Shanghai street on the eve of the Year of the Horse (Sinclair Shen/Flickr)

Early in 2013, as the Year of the Dragon neared its close and the Year of the Snake was about to begin in China, some high-profile Western analysts were cautiously optimistic about where the country was heading on the human rights and liberalization fronts. More than a few of them thought it a promising sign that Bo Xilai had been felled by a scandal and ended up in prison, for example, since this charismatic figure had exercised a thuggish style of rule over the megacity of Chongqing. And they expressed hope that under Xi Jinping, who had just taken over as head of the Chinese Communist Party (CCP) and was en route to being named China’s president, there would be some “political easing,” to borrow a phrase Nicholas Kristof used in a January 6, 2013 New York Times op-ed.

In recent weeks, which have seen the Year of the Snake end and the Year of the Horse begin, the news out of China has been hard to square with those early predictions about Xi’s progressiveness. Just before the Lunar New Year came on January 31, for example, the crusading lawyer Xu Zhiyong, who is known for making bold moves yet striving to work within the system rather than take on the mantle of being a dissident, was sentenced to four years in prison: see Nicholas Cavell’s comment next door on the Dissent blog. Meanwhile, word came that the outspoken Uighur economist Ilham Tohti had been seized by the authorities as well.

How significant are these moves by the state to rein in dissent and silence voices of conscience? Are there countervailing trends in the domains of law and rights that point in less discouraging directions? With questions such as these in mind, I felt it time to use an interview format again to bring information and ideas about China to the attention of Dissent’s readers. This time, though, I have not posed a series of questions to an individual specialist, as I did when I invited Ralph Litzinger to share his insights on the issue of pollution last summer, or when I asked Mei Fong to fill readers in on shifts in birth limitation policies last December. In this look at legal issues, I’ve queried not one expert but four: Carl Minzner of Fordham Law School; California-based lawyer Rebecca Liao (a past Dissent contributor); Thomas Kellogg of the Open Society Foundations; and Benjamin van Rooij, a colleague of mine at the UC Irvine School of Law. I asked this quartet of specialists—all of them people with strong Chinese language skills and experience in China, as well as legal credentials—one question: in terms of Chinese legal issues, what is one thing that happened or continued to be important during the recently concluded Year of the Snake that you think readers of this publication should know more about?

The answers I got ranged widely. For Kellogg, it was debates on constitutionalism, which serve, he said, “as a proxy for broader discussions of legal and political reforms,” that stood out. Liao, meanwhile, flagged the implications of the trial of Bo Xilai and the recent distressing prosecution of Xu Zhiyong and arrest of other civil society activists. For Minzner, the most important recent law-related story is “the concerted effort by CCP authorities to reassert control over the media—particularly Twitter-like microblogging platforms such as Weibo.” Van Rooij drew attention to how often even good laws that are on the books in China aren’t enforced, due partly to protectionist moves by local officials, and noted that calls for “centralization of fiscal, administrative and judicial authority” could help resolve or at least minimize this problem, but only if there is concerted follow-through.

Though some respondents certainly strike a less despairing tone than others—Kellogg sees it as a partially hopeful sign that constitutional concerns were at least being discussed last year, and van Rooij is glad to see increased attention on implementation—none paints a rosy picture of the first year of Xi’s ten-year term. Far from bringing a longed-for “easing” of controls on expression and civil society activities, the Year of the Snake often saw the ratcheting up of mechanisms of control and intimidation.

With law, as with so much else relating to China, we should resist the notion that only a single phenomenon matters or that trends point only in a single direction. Still, taken together, the four responses below suggest that early expressions of optimism about Xi’s rise were off the mark.

Thomas Kellogg: Sometimes the most important things that happen relating to law don’t involve new laws being passed but old documents being revisited. That was the case with the debate on constitutionalism. It was triggered, presumably unintentionally, by something Xi said between his being installed as head of the party in November 2012 and his adding the title president to his resume last March. In a December 2012 speech marking the thirtieth anniversary of China’s 1982 Constitution, he called on his party to “firmly establish . . . the authority of the Constitution.”

Xi’s remarks set off an avalanche of commentary, primarily published online. At its height, the debate included scores of participants, including virtually all of the top constitutional scholars in China, as well as many prominent public intellectuals and political analysts. Without doubt, the debate was the high water mark of constitutional discussion in China in more than a decade.

The conversation was so robust that conservative elements within the party felt the need to strike back: in May 2013 an obscure scholar named Yang Xiaoqing published a piece in the CCP mouthpiece Red Flag Manuscripts attacking constitutional reform and would-be reformists as potential saboteurs of China’s socialist system, whose reforms, if adopted, would lead to a Soviet-style collapse. Her piece was followed by a number of others, some of which adopted an even more strident, slashing tone.

If the leftist push by Yang Xiaoqing and others was meant to end the debate, it failed. If anything, the leftist attack had the opposite effect: it energized both liberal and mainstream scholars alike to renew their arguments.

Though the debate ended inconclusively, it did nonetheless have value, for three reasons: first, it highlighted a broad level of agreement among most scholars and intellectuals on the basics of constitutional reform, including independent governmental institutions that can act as a check on state power and protect individual rights. Importantly, many moderates, long considered supportive of the Communist Party’s approach to reform, called on the party to enact significant institutional changes that would limit the arbitrary use of political power.

Second, the debate highlighted the new party leadership’s unwillingness to contemplate such institutional changes. Indeed, when the party’s long-awaited reform blueprint was released in November 2013, it focused mainly on new economic measures and gave legal and political reforms short shrift.

Third, and perhaps most important, it highlighted a public desire for reform conversation: though the full extent of public attention to the constitutional debate is not known, the public response that can be observed is remarkable: uncountable millions followed the debate online, and mainstream media outlets had to be stopped by government censors from covering the debate more fully. Students and scholars packed auditoriums at law schools nationwide to listen to prominent reformers speak on the need for constitutional reform. This public hunger for new reform ideas should make the party sit up and take note.

Rebecca Liao: After his arrest in March 2012, Bo, the most prominent Chinese leader to fall from grace in the last two decades, was hardly ever out of the news for the rest of that year, and he and his wife continued to make headlines periodically well into 2013. The government revealed very little about his time in custody, but that did not stop the wild speculation about trial dates, the formal charges that would be filed against him, and the political wrangling behind the scenes in the Communist Party. When the trial was finally scheduled for last August, the discussion turned to whether the government could possibly avoid contradicting its pronounced commitment to fairness and justice in the legal system when it was obvious the verdict had already been decided. If China watchers have learned anything, though, it is to retain the capacity for surprise.

Bo was allowed a spirited defense. The judges who presided over the trial were by and large mindful of correct procedure. Though proceedings were not open to foreign media or the public, the court provided coverage by regularly updating its Weibo feed and releasing transcripts. That level of transparency was unprecedented. The Communist Party’s handling of the trial drew praise from across the political spectrum: even Li Zhuang, a Chinese lawyer jailed on trumped up charges for representing a foe of Bo, and He Weifang, China’s most prominent liberal legal scholar, were impressed.

Alas, we found out this month that the party’s attempt to understand and implement legal best practices does not apply to all. The trials of Xu Zhiyong and fellow members of the New Citizens’ Movement he founded are a disappointing, befuddling step back for China’s legal reform program. These are the highest-profile legal proceedings since Bo’s trial, and contrasts between the two could not be starker. Xu’s trial was closed to the public and the media. There was no Weibo feed offering a window into the case. The defense was not able to call or cross-examine witnesses. Xu was summarily cut off midway through his statement to the court.

At first blush, it would appear that the party has every incentive to replicate the procedural safeguards and transparency of the Bo trial. An international and domestic audience is also watching Xu’s case and passing judgment on China’s legal system, the linchpin of Xi Jinping’s reform agenda. A major difference, however, between Xu’s and Bo’s cases is that the latter was a matter of political infighting. Though the stakes were high, all parties involved were known quantities to one another, compatriots and colleagues working, at the end of the day, to strengthen the Communist Party. A deal could be struck ahead of time. The party had no such luxury with Xu and therefore believed it had to circumvent legal procedure to retain control of the trial’s messaging.

Carl Minzner: Beginning in the late 1990s, increasingly commercialized media outlets such as the Southern Weekend (and later, Sina Weibo) emerged as platforms for citizens and legal activists to challenge a range of state actions. Muckraking journalists would air the dirty laundry of local officials in investigative exposés. Public interest lawyers would partner with newspapers to cover court challenges to government actions. Ordinary citizens would fire off tweets fulminating against official corruption. In the fierce competition for readers and advertising revenue, some editors would play fast and loose with official propaganda controls (submitting copy for review late on Friday afternoon, after the censors had clocked out for the day, being one favored trick). 

In 2011 CCP authorities were unnerved to observe the extent to which social media had become a tool for activists to organize social discontent against authoritarian regimes in the Arab world. They have since launched a broad crackdown on the domestic Chinese media. In a scene reminiscent of Maoist-era justice, several of China’s “Big Vs” (social media celebrities with millions of followers) were led before television cameras last year (one in prison garb) to confess to their involvement in spreading online rumors. New judicial interpretations imposed harsh prison terms for ordinary bloggers determined to have spread false information. And new political education classes were announced for Chinese journalists, while party propaganda authorities moved to exert greater control over the schools that train them. 

Unsurprisingly, a chill has since descended across the Chinese media. Chinese journalists are depressed. Users are abandoning Weibo—some 27.8 million (9 percent of the user base) leaving in 2013—and migrating to Weixin (WeChat) a less public, less viral social media platform.

Benjamin van Rooij: Recent reforms relating to centralization of authority are important to assess because implementation problems affect so many social issues and facets of the legal system, affecting everything from industrial pollution to food safety to corruption. My sense is that, while it is certainly a hopeful sign that Xi Jinping has called attention to the problem in recent months, and that plans for reforms that some think might help overcome weak implementation have been proposed, implementation is likely to stay a big problem into the future. Key in the recent reform plans is the goal of centralizing fiscal, judicial, and enforcement authority to create a stronger structure of oversight to combat local protectionism. Chinese and foreign observers alike point to such protectionism as an intractable problem that prevents laws that run against local interests from being implemented. The idea is to make courts and administrative authorities, including the party’s main internal corruption watchdog unit, less subordinate to local authorities and more directly accountable to higher levels.

But will such recentralization actually help overcome existing implementation problems? Will local governments easily give up the power that they have at this point and allow their powers to be taken away? Will the recentralized authorities be powerful enough to be able to operate locally against vested interests? Will the central level itself be willing to enforce laws that run against its own interests? These are all open questions and earlier experiments with centralization of enforcement authority in regard to specific issues, such as land administration, often had disappointing results, with centralized authorities lacking the clout to effectively act against local governments. Undoubtedly a centralization of certain judicial and administrative authorities is crucial. And perhaps a parallel structure can be developed in which there are different courts and agencies for issues that cannot and should not be handled by local level judges and inspectors. However, China’s approach to implementation of law follows an obsolete model of command and control in which the state is seen as the key actor.

A true solution to implementation problems would recognize that apart from centralization of state authority, new actors should be allowed to join in. Here civil society in the broadest sense is key. It can add implementation capacity by tapping into the informational resources about violations of law in society and help central authorities move against local level interests. To achieve such a broad approach to implementation of law, centralizing reforms are not sufficient. Broader political reforms, which at present are not even on the table, are vital, most importantly freedom of association, freedom of press, and freedom of speech. A serious analysis of implementation of law could at least open a discussion about such political changes.

Jeffrey Wasserstrom is Chancellor’s Professor of History at UC Irvine and author, most recently, of China in the 21st Century: What Everyone Needs to Know, a new edition of which, updated in collaboration with fellow Dissent contributor Maura Elizabeth Cunningham, was published in July.

On February 27, 2014, Wasserstrom will join Jiayang Fan (contributor, The New Yorker), Mehboob Jeelani (contributor, Dissent), and Jonathan Shainin (web editor, The New Yorker) at the New School in New York City for a panel on anti-corruption movements in China and India, sponsored by the India-China Institue and Dissent. Follow the link for more details and to RSVP.

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