On the one hand the country must “stick to the Party’s leadership”, and on the other hand the government proclaims to be “developing a society ruled by laws”. This is the contradiction facing China’s legal system. In reality, everybody knows the Party is overriding the law. The People’s Congresses at different levels, which are supposed to be in charge of legislation, are regarded as an ineffective part (Â∏ÆÈó≤) of the Party organization. In dealing with important cases, the judiciary must be subjected to the decision of the Party’s Politics and Law Committees (ÊîøÊ≥ïÂßî) at different levels. In ancient China, only emperors dared to blatantly supersede laws, but now, all levels of party organizations are able to supersede, manipulate, and intervene in laws within their own areas. This leads to a situation where people seek an affiliation with the Party. Laws are largely neglected, since if you are backed up by Party members who are in a position of authority, you will care nothing about laws.
There is an endless assortment of laws that China has compiled, and more legislation is underway. As Tacitus once said, “The more corrupt the republic, the more numerous the laws.” It’s not the jurisprudence or the law system that calls for a large number of laws. There are no constraints and checks from the public. It’s for the convenience of the Party’s power and their benefit that laws are passed. Such laws are often inappropriate and are in conflict with each other, and are hard to be enforced in reality. No one observes laws and no one is prosecuted for breaking laws, which finally leads to the “inferiority of law-observers.” Those who observe laws will be defeated, or even find it hard to make a living. This inferiority forces people to break laws. That “the law doesn’t punish the masses” is more and more prevalent, and it’s more and more difficult to punish law breakers. In this cycle, laws continuously loses importance. I can say, in today’s Chinese society, those who are relatively active can seldom escape legal punishment if there is a strict legal probe.
This provides a new control mechanism for the autocratic government, as when breaking the law becomes more pandemic, it will be more convenient for the Party and the government to use the name of laws to punish those they want to punish (no one is clean anyway). The law will then be degraded as a “legalized power to cause damage (ÂêàÊ≥ï‰º§ÂÆ≥ÊùÉ)” (Wu Si). The law is no longer the main subject, but rather how the law is used. Whether or not to use the law, how to use it, and to what extent to use it are all mutable factors. The law becomes a weapon that can be fired to kill the competitor at any moment; it also becomes a deterrent constantly hanging above everybody’s head. At the same time, it becomes a zero-cost trade – since the “legalized power to cause damage” can be used at will, you can ask for returns by promising to lower or remove the damage. The Communist Party is using this method to ensure the obedience, loyalty, and submission of Chinese society.
Of course this is not rule by law, and in fact runs counter to the spirit of rule by law. Although China is also advocating that “everyone is equal under the law”, as soon as the Party interferes (normally by calling together “a coalition of the Public Security, the Justice, and the Court” through the Politics and Law Committee), the law will be perverted. Even in some ordinary cases that the Party has no time to meddle in, the “legalized power to cause damage” is frequently applied to replace the law and is used as an instrument of rent-seeking, pie-splitting, and trade for some local officials, public securities, judiciaries, and courts, as a weapon in factional fights and backbiting, and even as a trick for some individuals to extort, amass funds, and enact revenge. In a word, the “legalized power to cause damage” is everywhere in China, and has become one of the most pervasive power relationships.
In a society where a majority of citizens have lost their respects to the law and where law breaking is a commonplace, it’s an unavoidable conundrum how to build a real system of rule by the law, and establish a democracy, a republic and a constitutional government that is protected by the law.