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A just legal system

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
December 11, 2007
International Herald Tribune

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Over the past 30 years, the Chinese Communist Party has adopted - albeit haltingly - many of the norms and institutions required for a formal legal system. These advances have contributed to a growing consciousness of their rights among ordinary people, rural and urban, who increasingly look to the legal system to resolve a broad range of grievances.

Moreover, the rapid economic and social development of the country - which has brought better education, more mobility, more reporting about the law, more TV and radio shows featuring legal dramas - has created a huge demand for formal adjudication of disputes.

But despite routine calls for strengthening the “socialist rule of law” and the demands of rapid economic and social development, the Party has so far avoided the bold reforms that a genuine rule of law would require. Such reforms would, at a minimum, demand that the Party surrender its power to dictate decisions in individual court cases and place the Party and government under the law, not above it.

It will be difficult for China to sustain its phenomenal economic progress, resolve environmental problems, deal with social tensions and expand its foreign links without courts that can do the job. A regime that is confronted with a growing volume of popular protests, often violent, will ignore these needs at its peril.

Fortunately, unlike the state of affairs at the start Deng Xiaoping’s “Open Policy” 30 years ago, China now has hundreds of thousands of able and increasingly well-trained legal specialists eager to build a credible legal system - one that can meet the demands of a more sophisticated economy and society.

Reforming the system - ending political interference in the courts, uprooting the widespread corruption in the judiciary, overcoming local protectionism and, above all, eradicating the corrosive effects of “guanxi,” the network of personal relations that is generally more influential than laws and rules - will be difficult.

Yet Chinese experts have reached consensus about the steps that must be taken. What is lacking is the sort of strong support for legal reforms at the highest levels of the Party similar to the support the Party has shown over the last generation for economic development. So far, no Communist leader has made a genuine rule of law part of his political platform or legacy. Indeed, although recent Politburo members have been well-educated, their backgrounds have generally been in engineering rather than social science and law. No leader has had the legal sophistication required to understand - and to persuade his colleagues - why it is critical, at China’s current stage of development, for the Party to yield some of its powers and tolerate the growth of genuine judicial autonomy, contrary to Communist traditions.

Lenin briefly had been a criminal defense lawyer under the czarist government before opting for revolution. Yet subsequent Soviet leaders rarely had legal training and support for a rule of law could have been fatal to their ambitions and survival. Although Mikhail Gorbachev studied law, only after he gained power could the impact of that education be seen.

When Gorbachev visited Beijing in May 1989, some of the students awaiting tragedy in Tiananmen Square ruefully commented: “Our Gorbachev is still in high school.” Today that would make him roughly 35 years old, too young for the Politburo.

Were the students too pessimistic about how long they might have to wait for serious restructuring? The recent promotion of Li Keqiang, 52, to the nine-member Politburo Standing Committee, makes one wonder. After the Cultural Revolution, as an urban youth serving the Party in a rural village, Li was among the fewer than 5 percent who passed the newly-revived national college entrance exam. He enrolled in Peking University, the nation’s most prestigious, and there studied law - not engineering - from 1978-82, just as Deng Xiaoping was proclaiming the essential role of the law in China’s modernization.

A decade later, while continuing to work in the Communist Youth League, Li spent five years as a member of the standing committee of the National People’s Congress, China’s legislature, and the NPC’s internal and judicial affairs committee. This is more time working on law than any previous Chinese leader had spent. It has raised hopes to Li’s friends in legal circles, who are mindful of the Chinese maxim: “Hide your ability and bide your time.”

If Li, who is reportedly President Hu Jintao’s favorite to succeed him, performs as expected, five years from now at the next Party Congress, he could become head of either the Party or the government. By that time, domestic and foreign pressures to create a more independent legal system may be strong enough to persuade Li and a new generation of Party leaders to undertake the major structural changes that many Chinese legal experts have advocated.

Understandably, the Party leadership’s worst nightmare is the specter of a Chinese Gorbachev, whose innovations brought down the entire system. Yet, if leaders now in their early 50s fail to heed the rising demands for an authentic rule of law, that specter may confront their successors.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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