The Movement for Rule of Law in China

Cheng Li is a senior fellow and research director in the John L. Thornton China Center at Brookings Institution. He is editor of “China’s Emerging Middle Class” (2010). This article is adapted from his introduction to Chinese legal scholar He Weifang’s book, “In the Name of Justice: Striving for the Rule of Law in China.” (2012).

WASHINGTON—One evening in the fall of 2011, almost five months before the dramatic downfall of heavyweight political leader Bo Xialai, I sat in an auditorium at the Law School of Peking University listening to a panel discussion on China’s judicial reforms.

The Beida Law Society, a student organization on campus, sponsored this public forum featuring He Weifang and Xu Xin, two distinguished law professors in Beijing. The auditorium was crowded with several hundred people (mainly students and young faculty members but also some Chinese journalists). As I listened to this engaging and enlightening discussion, it occurred to me that I was witnessing a profound political movement unfolding for constitutionalism in the People’s Republic of China (PRC).

What struck me—and shocked me as a foreign visitor—was not only that the entire discussion was explicitly critical of the Chinese Communist Party (CCP) for its resistance to any meaningful judicial reform but also that the atmosphere was calm, reasonable, and marked by a sense of humor and sophistication in the expression of ideas. Both professors criticized the CCP’s omnipresent role in the country’s legal system, especially in regard to the infinite power of the Central Commission of Politics and Law (CCPL) of the CCP. In the words of He Weifang, many recent well-known cases of injustice were largely due to the “invisible hand” of the CCPL. Both speakers called for a fundamental change in the role and presence of the CCPL, including the abolition of the politics and law commissions at all subnational levels.

As part of China’s overall political reforms, He and Xu proposed prioritizing judicial reforms with a focus on judicial independence. They argued that judicial reforms are in line with the need for social stability and thus should be considered the least disruptive way to ease China’s much-needed political transformation. They outlined several important systematic changes to China’s legal system:

— transferring the leadership of judicial reforms from the CCPL to the National People’s Congress (NPC) in the form of a yet-to-be-established judicial reform committee, one in which legal scholars, lawyers, and representatives of nongovernmental organizations would constitute more than half of the members;

— adjusting the role of the CCP from appointing presidents of courts and chief prosecutors to only nominating them (an independent selection committee, rather than the party organization department, would make these appointments);

— prohibiting interference by the CCP in any legal cases, especially by prohibiting judges from being CCP members and banning party organizations within law firms;

— reducing the power of both presidents of courts and chief prosecutors in order to enhance procedural justice; and

— establishing a constitutional review system, including a new constitutional committee and constitutional court.

In addition, Professor Xu presented a comprehensive plan for establishing a protection and guarantee system. He specifically addressed important issues such as how to ensure budget security for an independent judicial system, how to provide job security for legal professionals, how to prevent corruption and other power abuses in law enforcement, how the rule of law can ensure citizen’s democratic rights including the development of the jury system, and how to protect the legal rights of vulnerable social groups.

The panel discussion was also politically and intellectually stimulating thanks to an interactive session with the audience that covered a broad range of questions from students. One questioner asked, “If judicial reform is the lowest-risk approach for China’s political transformation, where does the strongest resistance come from?” Professor Xu responded bluntly, “The strongest resistance comes from the CCP leadership.”

Another questioner wanted to know, “What’s the incentive for the CCP and powerful interest groups to pursue judicial reform that may very well undermine their own power and interests?” Professor He replied, “It’s a result of a domino effect—a natural and inevitable consequence of the fundamental change of state-society relations in China. From the perspectives of the CCP leaders, some may want to be remembered in history as having been on the right side.”

This episode of openness and pluralism in intellectual and political discourse, though eye-opening and surprising for foreign observers like myself, is by no means unique in present-day China.

In recent years an increasing number of well-known professors and opinion leaders have shown that they are not afraid of publicly expressing their controversial views, including sharp criticism of the CCP authorities. Such remarks would have been regarded as politically taboo or even “unlawful” just a few years ago. Never before in the six-decade history of the PRC has the Chinese general public, and especially the rapidly growing legal community, expressed such serious concerns about the need to restrain the power of the CCP and to create a much more independent judicial system.

Like He Weifang and Xu Xin, many other prominent legal scholars in the country frequently give public lectures and panel discussions on similar topics, with many of these events being webcast on the Chinese Internet. In November 2010, for example, the death of the distinguished constitutional scholar Cai Dingjian led to nationwide, year-long memorial activities honoring his advocacy for the rule of law in China. Cai’s last words, “Constitutional democracy is the mission of our generation,” were widely cited in both the country’s official media and social media.

These instances do not necessarily mean that Chinese authorities have loosened control of the legal profession. On the contrary, liberal legal scholars and human rights lawyers are often among the main targets for harsh treatment, including imprisonment.

Yet the movement for rule of law in the country seems to have already reached a moral and political high ground. It has gained further momentum in the wake of recent crises such as the defection of former Chongqing police chief Wang Lijun to the US consulate in Chengdu, the downfall of Politburo member Bo Xilai and the subsequent murder charge against his wife, and graphic tales told by blind human rights activist Chen Guangcheng of torture and other abuses of power by Chinese law enforcement.

Both the frequent manifestations of social unrest and the growing transparency of factional infighting in the CCP leadership in recent years further underscore the urgency of developing a credible legal system.