I.
Introduction:
The CCP and the Law
In his 2009 policy paper entitled
“The Party as Polity, The Communist Party, and the Chinese Constitutional
State: A Theory of State Party Constitutionalism,” Larry Catá Backer analyzes
the theory of constitutionalism in application to China. According to Catá
Backer, constitutionalism is a theory which posits that “states ought to be
organized to avoid tyranny or despotism by grounding state action in law and by
limiting the reach of such lawful state action on the basis of values
reflecting the values of the political collective” (Catá Backer 2009: 103). In
his paper, he notes that China has developed what he refers to as a system of
“authoritarian constitutionalism,” according to which the Communist Party
itself “serves as the political collective from which constitutional norms are
formulated, developed, defended and reviewed,” and which also “plays a role as
constitutional source of values for the application as rule of law” (Catá
Backer 2009: 157). Finally, he argues that the Communist Party “sits atop the
state apparatus” and serves as the “sovereign collective,” or ultimate
representative of the people (Catá Backer 2009: 157). Yet, what remains
uncertain in Catá’s analysis is to what extent does the Communist Party have
control over judicial outcomes? This paper will seek to examine competing
claims over the powers of the Communist Party, and will analyze two divergent
areas of Chinese law, including its systems of trade law and criminal law.
In recent years, China has embarked on an ambitious agenda
that has resulted in legal reform of expansive scope and depth. Although once
seen as a country devoid of law and marked by traditional notions of guanxi (关系), or a “system of
interpersonal relationships” said to take precedence over the rule of law
(China Strategic Research 2009: 1), China now has more laws on its books than
any other country in the world (Inch 2010). Yet despite these reforms, scholars
have noted that China still has a long way to go before it can claim to have a
society built on the rule of law. Some have said that the creation of a Chinese
system of rule of law is impossible in a system marked by the subordination of
law to Communist Party policy and the lack of independence of the courts
(Westin 2002: 2). In fact, it is often argued that the key function of the law
to the Chinese government is “to order and regulate the exercise of government
power” (Horsley 2006: 93). As of May 2009, approximately one-third of
registered lawyers were party members, and almost all law firms had party
committees, which allocated attorney remuneration based on loyalty to the party
(McGregor 2010). In a 2009 pronouncement by the Party, it was said that judges
must remain loyal “to the Party, the state, the masses and finally, the law,”
in that order (McGregor 2010: 24). Furthermore, despite the establishment of a
procedure in 2005 that made it possible for individuals to file petitions with
the central government to challenge the legality of local regulations (Horsley:
2006), attempting to do so is said to be futile, as “the Party sits outside,
and above the law” (McGregor 2010: 22), and that “[n]o legal obstacle is so
great that the party cannot brush it aside” (McGregor 2010: 25).
Another significant problem said to be plaguing the court
system is the incompetence of Chinese judges (Horsley 2006). In some respects,
there have been signs of improvement. For instance, unlike in the past, where
“judges were typically drawn from the ranks of the retired military” and
“[a]ppointments were based more on political correctness than on relevant
experience or legal knowledge,” today’s judges are “required to hold university
degrees” and “pass a national unified bar exam,” as well as “participate in
ongoing legal education programs” (Horsley 2006: 102). Yet, judges remain
highly “susceptible to pressure” from the Communist Party, as it continues to
control judicial salaries and court budgets (Hung 2002: 9); as well as judicial
appointments and the personnel arrangements of the Courts (Inch 2010).
II. Trade & The
Role of International Law
Despite the forgoing claims, there is reason to believe that
the Communist Party’s grip on power is not absolute. One evolving area of the
law which demonstrates the limits of the power of the Communist Party is trade
law and policy. In 2001, China was permitted to join the World Trade
Organization, or WTO, after a fifteen-year-long accession process that required
deep reforms to China’s political, economic, and legal systems in exchange for
it to be permitted to avail itself of the many benefits of membership in the
WTO system (Rumbaugh 2004: 4). The WTO is an international body tasked with
administering the rules of trade between nations, providing a forum for trade
negotiations, and handling trade disputes and monitoring national trade
policies (Kobayashi 2007). Previously known as the General Agreement on Tariffs
and Trade (GATT) and limited in its scope to trade in goods, a
fully-functioning, multifaceted World Trade Organization subsumed the GATT at
the conclusion of the Uruguay Round of trade negotiations in 1995 (Jackson
1997). The WTO introduced agreements on trade in services and intellectual property,
and provided for the creation of a fully-functioning organization, and a more
procedurally-sound, binding system of dispute resolution (Jackson 1997).
When it comes to trade law and policy, membership in the WTO
was predicated on China agreeing to undertake a series of legal reforms and
consenting to the application of the entire body of WTO substantive principles
and regulations. Among these were requirements that China substantially reduce
its imposition of tariffs, or taxes imposed upon imports; and that China
provide for fair trade by putting an end to its practice of subsidizing its
domestic industries or permitting the “dumping” of its products on other
markets through the use of predatory pricing (Hu 2001: 101). China also
consented to the non-discrimination principles embodied in the GATT agreement,
including “national treatment,” which mandates that “treatment for foreign
products be no worse than that for like domestic products” (Hu 2001: 101), and
the “most-favored-nation” obligation, which requires “each contracting party to
grant to every other contracting party the most favorable treatment that it
grants to any other country with respect to imports and exports of products”
(Jackson 1997: 157). With respect to its commercial relations, China’s
Accession Agreement ultimately involved over six hundred commitments; at least
ten percent of which were determined to require China to “enact, repeal, or
modify” trade-related laws, policies and regulations (Westin 2002: 3).
Yet, the reforms that China was required to undertake went
far beyond substantive economic policy. Among these were obligations to provide
for “transparency,” “judicial review,” and the “uniform enforcement of laws”
(Westin 2002: 2). With respect to transparency, China agreed to publish its
trade regulations (Kobayashi 2007: 5) and “provide a reasonable period of
public comment before implementing them” (Westin 2002: 4). Regarding judicial
review, China agreed to mandate that the “central government…address areas
where WTO [law] is violated and provide a meaningful remedy” (Kobayashi 2007:
5). China also agreed to “establish or designate tribunals to promptly review
trade-related actions of administrative agencies” (Westin 2002: 4). As to
uniform enforcement, China agreed to apply trade-related laws and regulations
“uniformly throughout China” and provide for a complaint procedure whereby
“individuals and enterprises can bring complaints to China’s national
authorities about cases of nonuniform application of the trade regime” (Westin
2002: 4). Finally, and perhaps most significantly, membership in the WTO
required China to consent to becoming subject to the jurisdiction of the
Dispute Settlement Body, an international body capable of adjudicating disputes
over WTO rules and enforcing decisions against China’s own will (Hu 2001).
It is of course, one thing to agree to a series of
obligations and quite another to actually put those agreements into practice.
To what extent has China followed through with its WTO commitments? For one, China
began to make positive rule of law changes to its domestic legal system in
advance of its securing membership to the WTO, as demonstrated by the 1999
amendment to its Constitution, which recognized for the first time that “[t]he
People’s Republic of China shall be governed according to the law and shall be
built into a socialist country based upon the rule of law” (Chow 2003: 78). By
the end of 2002, China had already revised fourteen of its laws and
thirty-seven administrative regulations, annulled twelve administrative
regulations, suspended thirty-four relevant documents, and changed more than
one-thousand departmental rules to comport with WTO obligations (Zou 2006:
89). By 2003, China had lowered its
tariff rates, eliminated non-tariff measures, and relaxed limitations on
foreign investment (China Daily 2003). As a result of China’s having undertaken
domestic reforms permitting increased market access, its total trade vis-à-vis
the rest of the world more than doubled from $509.8 billion in 2001, to $1.2
trillion in 2004 (Winn 2005).
Furthermore, the key legal institutions in China have become
increasingly accessible and transparent (Horsley 2006). Draft legislation is
now made available on the Internet for public comment, and public hearings are
increasingly being held on proposed legislation believed to be of public
concern (Horsley 2006). Additionally, as
of 2006, Chinese citizens were permitted to “audit” all legislative
proceedings; rendering them open to the public (Horsley 2006: 96). In June 2004,
the Standing Committee of the National People’s Congress established a special
office under its Legislative Affairs Commission, which was made responsible for
reviewing all central and local government regulations and legal
interpretations in an effort to harmonize legal process throughout the country
(Wang 2007). In January 2007, the government was set to approve China’s
first-ever national, administrative “freedom of information” ordinance, a
measure believed to be a precondition for the creation of an information access
law (Horsley 2006: 101).
As noted, membership in the WTO has
also subjected China to a binding system of dispute resolution. Scholars have
pointed out that China was initially reluctant to make use of the WTO’s dispute
settlement system upon its joining. As a result, in the first four cases in
which China was either sued or was threatened to be sued, China chose to “keep
a low profile” and settle its disputes outside of the WTO framework (H. Gao
2007: 369). As of 2007, China was brought into the dispute settlement process
as a respondent five times (H. Gao 2007: 372). Each of these cases demonstrates
the erosion of the power of the Communist Party and the strengthening of the
rule of law through the actions of the international community.
One such case involved a 2004 dispute brought by the United
States in which it was alleged that China was levying its domestic exporters of
integrated circuits with lower value-added tax rates than those imposed upon
importers, which if shown to be true, would constitute a violation of WTO
substantive rules (H. Gao 2007: 374). In the end, the Chinese decided to settle
the matter without resort to formal dispute settlement procedures. As part of
this settlement, the Chinese government agreed to immediately issue a “notice
to revoke” the measure complained of. In October 2005, the United States
announced that the terms of the agreement had been successfully implemented by
China, and the dispute was rendered closed (WTO Dispute DS309).
Another claim against China was brought in 2006 by the
European Union, the United States and Canada alleging that China was unjustly
discriminating against imports of automobile parts (Bown 2008: 36). Upon review
by a panel of the Dispute Settlement Body, it was determined that China’s
measures constituted violations of its WTO obligations, and recommended that
China bring the measures in question into conformity with its obligations
within a reasonable period of time (WTO Dispute DS339). The Chinese government
subsequently sought to appeal a portion of the adverse findings through WTO
procedures, but in December 2008, the Appellate Body largely upheld the
findings of the dispute panel, and once again urged China to bring its measures
into compliance (WTO Dispute DS339). Faced with the threat of retaliatory trade
sanctions, representatives of the Chinese government notified the WTO Dispute
Settlement Body of its intention to put an end to its discriminatory measures
concerning automobile parts, and China’s General Administration on Customs
issued a “joint decree” with other relevant agencies putting an end to the
discriminatory practices (WTO Dispute DS339). The Chinese government ultimately
declared itself to be in compliance with the Dispute Settlement Body’s
recommendations as of September 2009 (WTO Dispute DS339).
More recently, a number of disputes have been filed against
China by the U.S. and other WTO members, among which was a 2007 case brought by
the U.S. alleging that China was unjustly invoking measures restricting the importation
of audiovisual entertainment products, including films, videocassettes, DVDs,
sound recordings and other written materials. (WTO Dispute DS363) In August
2009, a panel of the Dispute Settlement Body completed its review, and found
China to be in violation of several of its WTO obligations for its failure to
protect the rights of foreign businesses seeking to operate in China, including
most significantly the prohibition on import quotas under Article XI of the
General Agreement on Trade and Tariffs, and provisions under the General
Agreement on Trade in Services mandating that treatment of imported
distribution services be no less favorable than the treatment of domestic
distribution services (WTO Dispute DS363). China subsequently appealed the findings
of the panel to the WTO’s Appellate Body, which in December 2009 circulated its
report which substantially upheld the panel’s original findings (WTO Dispute
DS363). In February 2010, China announced that it would bring its policy into
compliance with the Appellate Body’s report, and both the United States and
China have agreed on a reasonable timeline for it to do so, and the deadline
for compliance has been set for March 2011 (WTO Dispute DS363).
The resolution of each of these representative disputes
indicates the extent to which China, and by extension, its Communist Party
leadership no longer exercises absolute sovereignty with respect to trade
policy. Despite the fact that the measures called into question by other WTO
members in the sampling of disputes cited above were those which, if permitted
to continue, would support Chinese domestic industries and thus, Chinese
Communist Party interests, the actions of the international community and the
threat of WTO sanctions ultimately persuaded the Chinese government to agree to
withdraw the measures in question in the face of the possibility of retaliatory
trade sanctions.
III. Chinese
Criminal Law and the Continuance of Communist Party Controls
Despite the reforms achieved in the
area of trade law, some have noted that China still has a long way to go before
it can claim to have a society built on the rule of law. (McGregor 2010) One
area of the law which demonstrates the extent to which the Communist Party
maintains a grip on power is criminal law. With respect to criminal law, China
does not belong to any international organization such as the World Trade
Organization which would act to place limitations on the Communist Party’s
ability to exercise power. In fact, China has actively shunned any efforts on
the part of the international community to gain its willingness to consent to
it becoming a state party to the International Criminal Court, or ICC. When the
Rome Statute authorizing the creation of the ICC was ratified in 1998, China
was one of only seven countries in the world that refrained from joining.
(Findlay 2010: 3) In refusing to ratify the ICC Statute, China has focused on
the centrality of criminal justice to its sovereignty (Gao 2007). Among the
reasons given for its refusal to become party to the statute were concerns that
the ICC would have supranational authority to determine whether individual
states are “willing and able to conduct proper trials of its own nations;” the
criminalization of “crimes against humanity,” the definition of which was not
limited to those crimes committed during wartime, and the inclusion of the
“crime of aggression” in the ICC statute, which it was believed might have the
potential to be used against Chinese authorities for political ends (Findlay
2010: 3). It should also be noted that China has signed but has refused to
ratify the International Covenant on Civil and Political Rights, or ICCPR
(Human Rights Watch 2009: 34). The ICCPR, to which China is not bound, sets
forth a number of principles which afford protections of due process under
international law to those that are accused of crimes, including that
“[n]o one shall be subjected to arbitrary arrest or
detention” and that “[n]o one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law” (ICCPR
Article 9). Given the absence of an effective mechanism by which the
international community can exert supranational authority over China’s criminal
law, the Chinese Community Party maintains a stronghold on criminal justice
processes.
The Chinese criminal justice system
operates with little regard to due process, and its design effectively permits
the Communist Party to intervene as it pleases. Criminal law in China is said
to be “marked by long periods of investigatory detention, a high rate of
confessions and administrative penalties that are tantamount to incarceration
without trial” (Belkin 2000: 61). To
that end, criminal defendants lack the “right to refuse interrogation, enjoy no
presumption of innocence, and have no right to confront their accusers or
compel the presence of witnesses to testify in their defense” (Belkin 2000:
61). In certain circumstances, the police have chosen to hold individuals in
custody without charging them with crimes solely in an effort to “avoid
protests and other instances of social unrest” (CECC 2007: 37).
Access to counsel is said to be “extremely limited” during
the pre-trial phases of criminal cases, and the rights of the accused to
proffer a defense is limited by the absence of procedures which would provide
for discovery. (Belkin 2000: 61) In fact, as of 2004, only one in every three
criminal defendants had access to representation by counsel. (CECC 2007: 47)
Contributing to the inability of the accused to receive adequate representation
by counsel is the fact that defense attorneys are often intimidated by threats
of prosecution under statutes that provide for criminal liability for “evidence
fabrication” (CECC 2007: 48). In certain circumstances where the “vague and
elastic” concept of “state secrets” is implicated, the accused may find that
they must attain prior approval from those investigating him or her before he
or she can hire an attorney (Belkin 2000: 78). Cases which proceed under the
“state secrets” doctrine are conducted in secret, and are therefore immune from
public scrutiny and inspection (CECC 2007: 83). Once a case proceeds to trial,
prosecutors must meet a low burden of proof by showing only that “the facts and
circumstances of the crime are clear,” that “the evidence is reliable and
sufficient,” and that “the charge and the nature of the crime is correctly
determined” (Berkin 2000: 79). As of 2007, it was widely reported that many
continue to be “arbitrarily detained and convicted, and torture remains
widespread” (CECC 2007: 34).
In addition the limited nature of due process protections
afforded to the accused, the substantive penalties issued in China are said to
be “extremely harsh” (Belkin 2000: 83). In fact, Chinese law authorizes the
death penalty as a permissible sentence for sixty-five crimes, which not only
include murder and rape, but also include narcotics trafficking, financial
fraud, and embezzlement (Lu 2008: 4). According to the Dui Hua Foundation,
almost 100,000 individuals were executed by the Chinese government between 1997
and 2007, which accounts for over ninety-five percent of all executions carried
out worldwide (CECC 2007: 53). Although in recent years, the Chinese government
has taken measures to curtail the imposition of the death penalty by
implementing measures which have sought to reserve the death penalty for an "extremely small number of extremely serious and
extremely vile criminals posing a grievous threat to society” (Scott 2009: 5),
as of 2009, Amnesty International has confirmed that China executes “more
people than the rest of the world put together” (Amnesty International 2010).
Through the operation of the criminal law and the existence of the death
penalty as a permissible sentence coupled with the ability of the Communist
Party to intervene in cases as it pleases renders the Party capable of
compelling the Chinese people to succumb to its demands.
The Chinese criminal justice system is said to have its roots
in “Confucian communitarian ideology and communist philosophy,” which has
traditionally emphasized the usage of non-legal mechanisms for preventing crime
(Findlay 2010: 4). Although China introduced criminal codes under the Tang and
Qing Dynasties, and has since gradually adopted more modern criminal laws culminating
with the 1979 Criminal Law and Criminal Procedural Law, aspects of its
traditional focus on conflict resolution methods outside of the legal system
still persist (Findlay 2010: 5). In fact, police have the authority to call
upon administrative procedures and send an individual to a laojiao (劳教), or labor camp,
for up to three years even before the commencement of any judicial proceeding
through a process known as “reeducation through labor” (Belkin 2000: 68). As of
2005, it was estimated that as many as five hundred thousand individuals are
held in such administrative labor camps throughout China (CECC 2007: 40).
Similarly, public and state security officials are said to “regularly authorize
mass security sweeps” which involve the utilization of various forms of
administrative detention, house arrest, and surveillance in an effort to
“harass and control” the Chinese citizenry (CECC 2007: 37). Ultimately, the
criminal justice system in China is designed to first “protect…the socialist
order,” and only secondarily to protect “people’s rights” (Findlay 2010: 5).
Outside of the limitations placed on
the rights of the accused and the sentences imposed upon them, the criminal
justice system is constructed within a hierarchy which places the Communist Party
at its helm. The Communist Party is said to exercise influence over criminal
justice mechanisms through its influence on a variety of matters, including
“ideology, policy and personnel matters,” and even in some circumstances, its
direct involvement in “deciding the outcome of particular cases” (Peerenboom
2008: 13). It is said that so-called “party committees of political and legal
affairs exist at all levels of government,” and that such committees are
dominated by leaders of the Public Security Bureau, which is tasked with
investigating crimes, as well as chief judges and chief prosecutors (Belkin
2000: 67). The role of the Communist
Party at the top of the judicial hierarchy is further demonstrated by a 2003 resolution
issued by the Communist Party’s Central Committee, which noted that “public
security work must proceed under the Party’s absolute leadership” (CECC 2007:
46). Furthermore, a 2006 communiqué issued at the sixth plenum of the Central
Committee outlined the introduction of a policy which would seek to enhance
public and state security by sending police forces into local communities in an
effort to “safeguard stability” and build a “harmonious society” (CECC 2007:
46).
Crimes in China are prosecuted by the so-called “People’s
Procuratorate,” which operates under the direct authority of the National
People’s Congress and its Standing Committee (Belkin 2000: 65). Based on the
fact that such limited procedural protections are afforded to criminal
defendants, the People’s Procuratorate maintains a conviction rate which
exceeds ninety-nine percent. (CECC 2007: 51) Yet the role of the People’s
Procuratorate is not limited to the mere prosecution of crimes. Instead, its
leadership is vested with the authority to issue technically non-binding interpretations
of the law, which in actuality have tremendous impact upon the interpretation
of Chinese criminal law, as the language embodied has a tendency to be “vague”
and open to interpretation (Belkin 2000: 66). These vague provisions include
such crimes as “disturbance of public order” and “endangering state security”
(CECC 2007: 3). The reach of the leadership of the Communist Party is
strengthened by the fact that China operates a uniform system of criminal
justice through its maintaining of a single criminal code and criminal
procedure law applicable throughout the country (Belkin 2000: 64). The
extensive grip on power possessed by the Communist Party over Chinese criminal
justice is further evidenced by the fact that as of 2006, the sentences of
imprisonment for at least five hundred individuals accused of the crime of
being a “counterrevolutionary” were still serving sentences of imprisonment,
despite the fact that the crime was technically eliminated from China’s law
books in 1997 (CECC 2007: 5), and by the fact that it is Communist Party
leaders who remain responsible for determining the sanctions of police officers
accused of having abused their powers (CECC 2007: 43).
Cases which clearly demonstrate the
extent to which the Communist Party exercises its power through the criminal
justice system are those brought against human rights defenders. One
widely-publicized case was that brought against Liu Xiaobo (刘晓波). In
December 2009, Liu was convicted of the charge “inciting subversion of state
power” for his having published articles that expressed his “dissatisfaction
with the political and socialist system of [China’s] people’s democratic
dictatorship” (HRIC 2009). Additionally, Liu was alleged to have played a
leading role in drafting “Charter 08,”
an essay calling for the abolishment of the “one-party monopolization of ruling
privileges” and for the establishment of a constitutional democracy in China
(HRIC 2009). Ultimately, an eleven-year sentence of imprisonment was levied
against Liu (HRIC 2009). Given the fact that a penal statute is in effect in
China which permits courts to hold individuals accountable for merely
publishing material which the Communist Party finds threatening indicates the
extensive grip on power the Communist Party retains over the legal system in
China, and its ability to manipulate the law through the operation of the
criminal justice system.
IV. Conclusion
The forgoing analysis suggests that
Chinese domestic law is not above politics, and that the Communist Party
maintains a powerful force in the Chinese legal system despite efforts taken to
modernize that system. As pointed out by Larry Catá Backer in “The Party
as Polity, The Communist Party, and the Chinese Constitutional State: A Theory
of State Party Constitutionalism,” China has indeed established a unique form
of “authoritarian constitutionalism” which places the Chinese Communist Party
at the helm of its legal system. Yet at the same time, it should be noted that
the development of international law has served to quell the extent to which
the Chinese Communist Party can exercise an exclusive right to shape and mold
Chinese law. China’s membership in the World Trade Organization has
demonstrated that the Communist Party has found itself incapable of instituting
trade-related policies which would embolden its economic position if doing so
would violate its WTO obligations. Yet, in the case of criminal law, the
Communist Party maintains a stronghold on power. Marked by the non-existence of
an international body such as the ICC or a treaty such as the ICCPR which would
place limits on China’s justice system, its lack of due process protections for
the accused, the levying of harsh penalties, and the existence a hierarchical
structure of policymaking and adjudication of individual cases which places the
Communist Party at its peak, the criminal justice system in China maintains
within the control of the Party. Giving this analysis, it appears that
only with the establishment of supranational bodies capable of enforcing
international law, such as the Dispute Settlement Body of the World Trade
Organization, will the Chinese Communist Party find the scope of its powers
limited.
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