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Piyush Singh

Umbrella Protest and China’s Unending Quest for Rule of Law |46| India-China Chronicle  January–February 2015

China’s notion of ‘Rule of Law’ is considered cosmetic. Is President Xi ready to dismantle this notion, in a bid to improve China’s image? The next few years will be interesting to watch out, to view how the legal and judicial reforms will develop in Communist China.

n September 2014, the massive mass protests in Hong Kong evoked memories of the Arab Spring movement. Thousands of prodemocracy protestors poured out on the streets to vent their grievance against the Communist Party of China. The protestors demanded that China must adhere to the Hong Kong Basic Law as was agreed in Sino-British Joint Declaration when British handed over the region to China in 1997. The root of the controversy is Article 45 which is being interpreted differently by Hong Kong and China. The swift crackdown of protests in Hong Kong by CCP who are rejecting the notion of “one country, two systems” brings forth the larger question of Rule of Law in China. President Xi Jinping, since his ascendance to power, has repeatedly stressed on following the Rule of Law. He has categorically emphasized on adhering to the constitution of China and implementing it in a just and fair manner. However, the reality is quite different from the rhetoric. Actually, the Rule of Law, is nothing but Party’s endorsement of its authoritative mandate.

Cosmetic Judicial Reforms The main purpose of the judicial and legal reforms is actually designed to lend legitimacy to the Party rule,as opposed to usher in real change. The Chinese judiciary is under pressure from several fronts ranging fromadhering to the Party line, to tackling corruption and dealing with mass resignations, to name a few. In the sector of legal reforms, conviction rate in China is still one of the highest in the world. People are becoming increasingly tired of corruption and expect judiciary for a fair verdict. The Fourth Plenum held in October, 2014 in Beijing focused primarily on Rule of Law and proposed many ideas for true legal reforms such as establishment of circuit courts under the direct supervision of the Supreme Court to stop local Party interference in judiciary, more professionalized and independent judiciary, selection of judges of higher courts from the legal fraternity as opposed to picking from the Party. These were some of the thoughts which were backed by the Party leadership. However, the political and law committees continue to remain powerful, mocking the Rule of Law. Xi’s focus on Rule of Law and constitutional supremacy is laced

January–February 2015  India-China Chronicle |47|

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with deep flaws. Instead of the Rule of Law, ‘Rule by Law’ is the Party’s acquired tone. The State interprets law to advance Party’s mandate. Efforts are geared towards promoting the Communist Party as an essential feature of the constitution itself, and thus making the current stance as part of the basic structure of the constitution. Though the Party, in public, has pledged allegiance to the constitution and the legal system, it continues to remain above the law and hostile to true constitutional development of the country. President Xi has warned Party officials against advocating a Western style democracy in China. Since2012, many reformers, both within and outside the Party have been arrested and kept under house arrest. The present situation in China is reminiscent of the stance taken during the infamous 1989 event. Experts say that any sort of continuous mass protest in Hong Kong will lead to a chaotic situation and will be difficult to handle. Time and again China has subverted the Rule of Law. In 1982, when the current Chinese constitution was being drafted, efforts were made by legal scholars to incorporate independent judiciary and basic human rights, but both never saw the light of the day. Subsequent efforts in 1999 and 2004 for the same, met a dark fate. Beijing is attempting to salvage people’s belief in the Party, by hitting the ‘tigers’ in the Party namely, Bo Xilai and former security czar Zhou Yongkang on corruption charges and is trying to win people’s confidence. However, the act has evoked mixed response globally. Many experts believe that targeting both was more inline to remove opposition to President Xi within the Party rather than convicting them on actual corruption charges. In any case, President Xi’s ‘crack down’ on corruption has raised his popularity among the common people. Another important issue emerging from implementation of legal reforms is economic development. Xi has

To inform about seminars, workshops or conclaves, CHINA Is KEEN to sAlvAgE pEoplE’s bElIEf IN tHE pArty. It HIt tHE ‘tIgErs’ IN tHE pArty, sUCH As bo XIlAI ANd formEr sECUrIty CzAr, zHoU yoNgKANg oN CorrUptIoN CHArgEs, IN A bId to WIN pEoplE’s CoNfIdENCE categorically stated that economic reforms are his top priority in order to catapult the country to a high-in come grade. He emphasized that the legal reforms are geared towards attaining this mammoth task. Notion of Legal Reforms The offered justification of legal and judicial reforms is a veneer for the Party to affirm its dominant status. The Party is institutionalizing the type of governance it deems fit, regardless of the constitution. In doing so, the Party believes that the basic structure of the constitution will commensurate to its actions and hence would become difficult to amend. Building up Rule of Law with socialist characteristics

|48| India-China Chronicle  January–February 2015

is the main goal of the Party. It has aggressively rejected that Western style democracies and Western thoughts of Rule of Law will not endure in China and will only lead to the country falling into chaos. The next few years will be interesting to watch out in the sphere of development of legal and judicial reforms. As Xi has consolidated his power and enforced his leadership on the people, he will no longer need such dictums to work in his favour. He may occasionally use such programmes to quell dissidents both within and outside the Party, however, viewing anti-corruption drive–that proved to be the farce of Rule of Law–as validation of legal reforms will be too much to ask for. To promote true judicial and legal reforms, Xi has to break barriers within his Party and in the judicial system, which seems highly unlikely as present. In the meantime, it is wait and watch for handling Hong Kong protests, which many say will return full force. 

Piyush Singh is B.A, LL.B. student at Hidayatullah National Law University, Raipur. Views expressed are his own

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