“Rule of Law” and “Judicial Independence” Disputed

The Financial Times’ David Pilling and Julie Zhu report on arguments in Hong Kong over the term “rule of law.” Mainland officials such as ambassador Cui Tiankai have pushed an interpretation of the phrase which emphasizes public obedience: as former Central Party School researcher Wang Guixiu told the South China Morning Post last year, “the public say it is about putting officials in check, while officials say it is about how to govern the public.” Prominent figures in Hong Kong’s legal community have recently urged its government to acknowledge its own obligations under as well as the public’s:

Pro-democracy activists have accused the Hong Kong government of seeking to co-opt the “rule of law” concept by reducing its meaning to “obey the law”. Audrey Eu, a barrister and former leader of the pro-democracy Civic party, accused the government of using legal pretexts to stifle democratic aspirations. “You cannot have the rule of law unless the government respects it,” she said.

[…] In a speech this week, Paul Shieh, who is stepping down as chairman of Hong Kong’s Bar Association, obliquely criticised the government by saying that repeated invocations to “do things according to the law demean the law”. At worst, he said overemphasising respect for the law was the “hallmark of a regime which is keen to use the law to constrain the governed rather than to constrain the way it governs”. Hong Kong had not reached this point, but should remain vigilant, he said. [Source]

Read more from Stuart Lau at South China Morning Post.

At China Media Project, meanwhile, Qian Gang writes that an apparent “death sentence” on the phrase “judicial independence” presents “a worrying signal for rule of law” in China:

On January 7, more than 100 websites in China re-posted an article from the Party’s official People’s Daily called “Our Rule of Law Cannot Travel the Same Road as the West’s ‘Judicial Independence’” (我们的法治不能走西方“司法独立”的路子). The article, written by politburo member (张春贤), the top leader of China’s Uygur Autonomous Region, kicked up a storm of confusion on China’s internet. Over the past three decades of reform, the slogan “judicial independence” has been consistently upheld as something positive. Why, now, were the tables turning?

[…] Somewhat anomalously, the People’s Daily reported the day after Zhang’s piece ran that Gansu province had introduced a “ten-point ban” (十条禁令) on government leaders “interfering in judicial independence.” Here, right on the heels of a senior leader’s excoriation of the notion of judicial independence as foreign and unwelcome, was the same idea being used in a positive sense.

So how does the Party now regard this term? As the Party proclaims its interest in “comprehensively promoting rule of the nation in accord with the law,” does it support the idea of judicial independence? Or is it prepared to scrap the idea altogether?

[…] The very substance of last year’s Fourth Plenum was rule of law, and the specifics of the meeting had to do with judicial reform. And yet, in the wake of the Fourth Plenum, a gnawing fear of constitutionalism, of the checking of power, of any form of institutional change, seems to have gripped China’s elites. [Source]

See also Qian’s similar analyses of terms such as “Constitutionalism”, via CDT.