Zhou Yongkang and Rule of Law

Like the fall of Bo Xilai before it, last week’s announcement of a disciplinary investigation into former security chief Zhou Yongkang has been hailed by state media as a demonstration of China’s rule of law. Such a conclusion, even given Beijing’s idiosyncratic interpretation of the phrase, is at least premature. Discussing the subject with Jeremy Goldkorn and David Moser on the Sinica Podcast last Sunday, George Washington University law professor Donald Clarke pointed out that the case has not even reached the level of rule by law. No judicial proceedings against Zhou have yet begun, and it is “likely” but “very hard to say” whether they ever will. The Party disciplinary organs which have brought the case this far have no legal foundation, even though this could easily have been created. Clarke has argued before that “the Party leadership is [thereby] deliberately sending a signal that the Party is and will remain above the law.” As things stand, he notes, the Party group of the Supreme People’s Court has already announced that Zhou violated state law even before any indictment has been issued. (The Sinica discussion also covers the cases of rights lawyer Pu Zhiqiang, activist Xu Zhiyong, alleged monopolists Microsoft, and GlaxoSmithKline investigator Peter Humphrey.)

Nevertheless, Caixin editor Hu Shuli wrote on Wednesday that Zhou’s case presents an opportunity for progress toward genuine rule of law:

It was not a coincidence that the investigation of former senior party official Zhou Yongkang over discipline violations and plans to discuss law reforms at the fourth full meeting of the 18th Central Committee were announced on the same day. They are directly linked and together could herald the start of a new phase in China’s history.

[…] The downfall of other dirty officials, big or small, will surely draw wide public attention. However, what is more important is to build a legal framework in the course of fighting graft. Since corruption is inevitable at a time when China’s economy is undergoing rapid development and transformation, it is even more necessary to remain on guard against it. As such, the rule of law is the most powerful tool available to fight this scourge.

[…] There are five ways to accelerate legal reform: the authority of the constitution and the law must be maintained; the reform of administrative and law-enforcement systems must be deepened; the powers of courts and prosecutors must be executed legally, separately and impartially; the authority of the judiciary must be strengthened; and the protection of human rights must be upgraded. [Source]

At Foreign Policy, Rachel Lu translated a similar argument by investigative journalist Luo Changping. The dissolution of the unwritten rule protecting former members of the Politburo Standing Committee, he suggested, offers a chance, with one final step, to make a reality of claims that no one in China is above the law.

The tacit code that shielded members of the PSC from prosecution particularly included current members. When those in power go astray because of a lack of checks and balances, it is usually extremely difficult to correct the wrong while they occupy their posts. Justice usually goes into hiding when political power reigns; most of the time, only when political power is weakened or ceded can judicial proceedings get into gear.

Going the last mile to combat corruption means breaking that barrier as well: allowing disciplinary authorities to investigate or even prosecute current members of the PSC and take away their “get out of jail free card” too. This radical step would finally subject the most powerful seven men in China to the same standard as others. This could help prevent corruption from happening in the first place, and would constitute the most crucial step towards reforming the foundation of China’s current political system.

[…] Zhou’s case presents an important opportunity to reform the leadership system of the party and our nation, which is a necessary step if we are to fully establish rule of law in China. The core objective of reform is to completely rebuild a system in which power is highly concentrated in the hands of few men, with neither checks nor balances. Only with democracy and the rule of law can we have an orderly transition of power on a regular basis, overseen by an independent judiciary and other regulatory bodies. At the end of the day, democracy and the rule of law are the best auto-correct for our political system. [Source]

At China Real Time, Stanley Lubman highlighted reforms which “could help China to move past the Zhou era,” during which the “reputation and legality of China’s police, courts and prosecutors suffered” under his leadership. But he noted that the changes could simply bring about a partial centralization of political interference in judicial proceedings:

Earlier this month, Beijing released a 45-item list of legal reform goals, a significant aim of which is to reduce the influence of local government on local courts.  Such an aim may seem modest, but if successful, it would mark an important step in addressing the weakness of rule of law in the country.

[…] Proposed reforms aim to reduce this local interference by giving provincial-level judicial bodies the power to nominate judges for the basic-level courts and by financing the lower courts out of provincial budgets.

The idea behind the reform is a good one that could go much to improve the Chinese legal system’s ability to deliver justice. Whether it will work very much remains to be seen.

[…] Because the provincial as well as local governments have been able to resist the impact of national laws and policies, it is reasonable to wonder whether provincial governments—once they receive control over the local courts— will seek to influence the outcomes of legal disputes in the same manner that local governments have done. [Source]

At South China Morning Post, Chang Ping argued that Zhou’s fall gives no cause for hope of change:

If Zhou Yongkang could be said to represent a political vision, it was of a China where public security authorities would become so powerful that all levels of public security bureau chiefs would become members of standing committees; where the public security apparatus is more powerful than the law courts and prosecutors in the judicial system, allowing it to act without any scruples to “maintain stability”. In this dark vision for China, anybody who dares to press a legal claim or try to petition the higher authorities would be brutally suppressed, “black jails” would open up all across the country, and the whole system would be merely a cover for corrupt officials.

However, there are three problems with this. First, building a system to maintain stability is in line with the policy of creating a harmonious society as hailed by former president Hu Jintao, and Zhou was only an executor of this policy.

Second, there is no proof that the law courts and procuratorates are more capable than the public security authorities in safeguarding judicial independence and justice. If anything, the courts and state prosecutors have also acted as hatchet men in the persecution of dissidents.

Third, not only does Xi Jinping have no intention to deviate from the party’s line to “maintain stability”, in fact he has imposed even harsher controls to suppress dissidents and muzzle the news media. [Source]

At Politico, Pin Ho and Wenguang Huang wrote that Zhou, like Bo, is now facing the same extralegal excesses he helped to build, and that this cycle only seems set to continue.

Under his reign, China’s security apparatus greatly expanded, and the court became the party’s mere puppet. Police used extreme measures, such as kidnapping, torture and illegal confiscation of personal property to suppress pro-independence protests in Tibet and persecute Falun Gong practitioners, underground Christian church members, political dissidents, petitioners and human rights lawyers. Police would have activists “disappear” for months without notifying their relatives. Human rights organizations accused Zhou of turning China into a de facto police state.

Zhou’s victims are delighted that he will be accorded similar treatment. So far, the source says, Zhou has been accused of killing political opponents, including several businessmen and a prominent military figure—and even of plotting with Bo Xilai to assassinate and seize power from President Xi Jinping.

[…] In October, at one of the Communist Party’s top annual gatherings, Xi will reportedly make “ruling the country by law” its main theme. But, in reality, the party has never intended to rule China by law because an independent judicial would threaten its monopolistic rule. China’s legal system has been used to serve the interest of those in power and punish political opponents and dissidents. As a consequence, no one feels safe, not even those who are in power now. In Xi Jinping’s China, those who are investigating Zhou today could just as well end up in jail tomorrow. [Source]