Chinese concepts of the law differ in many important aspects from those in Western democracies. In imperial China, the term “governing the country by law” (rule by law) referred to the law as an instrument to guide and control the population. This is why scholars of Chinese law usually translate the term 法治 to “rule by law” instead of “rule of law.” This aspect still dominates under China’s current Communist rulers, although the current legal system contains more rules than in the past to protect citizens’ rights against the state.

Another feature of China’s traditional view of the law is that it was not evenly applied, as would be demanded under “rule of law” in a Western sense. It typically only applied to ordinary people who had to fear rigorous penalties for trespassing. By contrast, high-ranking government officials had little or no legal accountability.

This situation seems to be changing dramatically under China’s President Xi Jinping, who added the word “comprehensively” to the term “governing the country by law” in his often-quoted speech at the 2014 plenary session of the Congress of the Chinese Communist Party (CCP). With an inflationary use of the term, the CCP leadership plans to intensify control over the daily work of party cadres and government officials at all levels of government.

Recently, Xi stated, “the rule by law is our historical mission.” Hu Haifeng, former President Hu Jintao’s son and mayor of Jiaxing, responded immediately by taking more than 100 local government officials with him to attend a trial held by a local administrative court. The trial was about a legal dispute in which an operator of a quarry sued a county government for illegally closing down its site. That trial focused on whether the administrative decision made by the government was consistent with the law. After the hearing, Hu told his subordinates that government officials must pay homage to the law.

“Rule by law” increasingly means CCP’s control of government officials

Previous leaders used the term “rule of law” to signal improvement in legal clarity and judicial recourse for its citizens. In 1999, the term “governing the country by law” was written into the Constitution. China’s entry into the World Trade Organization in 2001 required a more predictable and reliable domestic legal system – at least in the areas of business and trade.

Yet the leadership kept stressing distinct “socialist and Chinese characteristics.” Based on this rationale, they objected to the introduction of a Western-style “rule of law.” Then-President Jiang Zemin advocated a combination of “rule by law” and “rule by virtues.” His successor Hu Jintao preferred a “harmonious rule by law” (the fewer lawsuits, the better).

This rule-by-law model is largely a duplication of China’s ancient rule-by-law ideals. Party cadres paid daily lip service to the law but they knew that the CCP would make sure that these laws would not be enforced against them. Towards the end of Hu’s term, government officials often disregarded laws and orders from the top CCP leadership. In practice, powerful cadres such as Zhou Yongkang and Bo Xilai acted without any boundaries.

When Xi ascended to the helm of the CCP, he sought to reassert control through his relentless anti-corruption campaign. This campaign had the undesired effect that numerous cadres at lower levels slowed down their work for fear of being punished for corruption or out of a lack of motivation. For Xi, however, the “rule by law” approach offers the solution. Rather than just exerting pressure through the CCP, he lowered the thresholds for citizens to sue government organs over wrong and unfair decisions.

Rule of law remains a remote vision

Certainly, this rule-by-law approach differs from that under Xi’s predecessors in that it expands the law’s reach to government officials and party cadres. Yet the rule-by-law approach remains an instrument to control civil society. Between 2014 and 2017, the Party-state enacted several laws that restrict civil rights using the notoriously vague concept of “national security”: the Anti-espionage Law, the Anti-terrorist Law, the Overseas NGO Law, the National Security Law, the Cybersecurity Law, and the National Intelligence Law.

Ultimately, Xi’s emphasis on equal application of the law serves his goal to bring certain “corrupt” officials and cadres to justice. It is inspired not by the “spirit of the laws” in the sense of Montesquieu, but by the famous dictum “I am the State” (l’état, c’est moi) ascribed to Louis XIV. The “rule of law” cannot take hold in China as long as the Party stands above the law. Xi Jinping has taken this notion one step further. It would seem that for him, the Party is the law.

Featured image: UN Geneva / Flickr.

Chinese citizens no longer need to travel far to bring a lawsuit to the Supreme People’s Court. On 21 January 2017, the newly established “third circuit tribunal” of the Supreme People’s Court (SPC) in Nanjing started to hear its first case – a dispute about the transfer of land use rights. These new tribunals were set up as permanent courts in designated cities across China. Unlike other regional courts they straddle provincial boundaries and can assume jurisdiction over disputes with national political and economic weight in several adjacent provinces. Decisions by circuit courts are final and binding and carry the same weight as a ruling by the Supreme Court.

The tribunals are highly popular among local citizens who have brought thousands of cases to these courts since the first two were established in 2015. The judges, who are directly appointed by the SPC, are viewed as more professional than their peers in local courts, and the rulings are viewed as more reliable.

However, rendering access to justice more convenient for ordinary citizens is not the only rationale behind the new tribunals. They also serve to tighten the Communist Party’s grip on the judiciary. Since 2014, circuit courts have been an integral part of Xi Jinping’s agenda to centralize the country’s court system. In fact, circuit tribunals now shoulder the task of thwarting any attempts by local judges to gain more independence or autonomy.

Initial hopes for more judicial independence

Before Xi Jinping came to power, circuit tribunals did not exist. The Supreme People’s Court merely provided “guidance” by hearing a small number of “representative” cases. In addition, the SPC issued judicial interpretations of laws and statutes, and replied to questions submitted by the high courts at the provincial level (there is one high court per province). Judges in the provinces enjoyed a high degree of autonomy from the SPC even though they were heavily influenced by local party committees, which controlled their financial and human resources.

The system of circuit courts was part of an effort to separate the judicial system and local governments. So when the first two circuit tribunals were introduced in Shenzhen und Shenyang in December 2014, there were high hopes among Chinese and Western legal scholars that these pilot projects spanning seven provinces would lead to reforms aimed at ending interference by local party bosses in the courts.

Supreme People’s Court tightens control

While political interference at a local level might have been reduced, the hopes for more judicial independence proved premature. In fact, the pilot projects were the first step towards centralizing judicial power nationwide. In November 2016, the CCP approved a plan to establish four additional circuit tribunals in Nanjing, Zhengzhou, Chongqing and Xi’an, each with jurisdiction spanning provincial borders. The  National People’s Congress appointed the presiding judges and chairmen of the four tribunals. Once all circuit tribunals were in place, the SPC had assumed direct control of the judicial practice across the country.

The new circuit tribunals have significant power and influence. They can choose to  take over any  significant case (especially politically sensitive ones) from courts in the provinces. The last four new circuit tribunals that were set up are each headed by a vice-president of the SPC and all of the six circuit tribunals are equipped with high-ranking judges. Most importantly, each circuit tribunal has a party committee whose members are appointed and dispatched by the SPC, and a full-time CCP official ensuring party control and overseeing anti-corruption affairs at the tribunal.

The CCP tries to “inoculate” China’s courts against Western influences

Centralizing judicial power through circuit tribunals goes hand in hand with the CCP’s firm rejection of judicial independence. This was made evident once again in Zhou Qiang’s speech on January 14. The SPC’s president described judicial independence as a western ideological “trap”. But he probably had not anticipated the ensuing public pushback. His comments triggered nationwide criticism and an open letter requesting Zhou to resign immediately.

However, Zhou is only the public face of the CCP’s judicial policies. The progress of the circuit tribunals is more important and deprives local judges of their autonomy more aggressively than Zhou Qiang’s tirade: in 2016 the two pilot circuit tribunals dealt with more than 4,400 cases, an astounding expansion of the SPC’s involvement in local justice. The circuit tribunals will thus strengthen the SPC while weakening the role of judges and courts in the provinces.

A review of China’s judicial system is a laudable effort and long overdue. Unfortunately, the new paper does not provide reliable information and raises fundamental questions of legitimacy. The State Council’s positive self-assessment stands in sharp contrast to reports on the continuing lack of fair legal process within China. It also ignores accusations of human rights violations from the United Nations (UN) and other outside parties. Instead, it presents selective statistics and unsubstantiated claims. It lists a number of recent reforms in the judicial system, which point in the right direction, but it fails to give a realistic account of China’s law enforcement practices.

No protection for lawyers

The paper claims to have improved citizens’ access to justice: several documents issued by China’s judicial authorities all enshrine lawyers’ rights to practise. This may sound good on paper, but is hardly reassuring to China’s human rights lawyers who have been harassed and detained by authorities in a sustained and relentless crackdown throughout the past year. In contrast, the UN has made repeated appeals for China to improve the treatment of lawyers and human rights activists. A recent report from the UN Human Rights Council still contains a variety of allegations against China in this respect.

Rampant judicial misconduct

The paper releases a plethora of seemingly positive statistics to show the “effective” achievements of the government in correcting alleged misconduct in the judiciary. However, the paper delivers merely selective evidence and omits important facts. For example, it notes that public prosecutors launched appeals in 6,591 criminal cases in 2015, which were allegedly wrongly decided by courts. Yet, the fact that so many court decisions had to be “corrected” would show how rampant unlawful practices remain in China. Besides, the White Paper gives no information on appeals launched by defendants, the grounds on which procuratorates launched appeals, or whether the revised decisions were the result of fair and open trials.

Use of death penalty

The White Paper stresses cautious use of death penalty, stating that it is only used on a “very small number of extremely serious criminal offenders”. In 2011, China abolished the death penalty for a number of non-violent offenses such as the smuggling of wildlife. However, other economic crimes, such as embezzlement, which would lead to prison sentences in most other countries, remain on the list. The paper also keeps silent on the total number of executions, which Amnesty International estimates to be higher than the number of all other countries combined. In China, this number is treated as a state secret, and the White Paper does not lift this taboo.

Extortion of confessions

According to the paper, the procuratorial organs dealt with 31,874 cases of abusive illegal conduct such as compulsory measures and unlawfully obtained evidence in 2015. The paper also proclaims to supervise detention facilities to prevent them from “extorting confession by torture”. Yet, the situation of crime suspects and detainees in China has worsened in the recent past. The public confessions of prominent human rights lawyers this year, broadcast on television or published as newspaper interviews, are unprecedented and contravene the fundamental principle of rule of law.

If China really wanted to reform its judicial system, it would be better off relying on outside assessments and advice than on its White Paper. In 2005, the UN Special Rapporteur on Torture submitted a report to the UN after a visit to China, in which he made several recommendations for eliminating injustice in China’s judicial system. A stop to forced confessions and the prosecution of dissidents based on charges of vaguely defined political crimes were at the top of that list. As long as China’s leaders do not address these issues, such White Papers will amount to nothing but propaganda.