Tuesday, June 28, 2011
Professor FU Hualing of the University of Hong Kong's Faculty of Law has recently written a very interesting meditation on the varieties of law in China. He has kindly permitted me to post it here.
* * * * *
The Varieties of Law
The University of Hong Kong
It is well known that the Chinese government’s budgetary process is a messy one. The concept of a “budget” in China includes: a formal and legal budget; an official but quasi-legal extra-budget; and an informal, occasionally illegal, extra-extra budget. The government budget is thus a complex mix of budgets of various sources and degrees of legality and legitimacy.
As with China’s government budget, Chinese law also comes in different varieties. There is the official/formal law made pursuant to the constitution and, in the shadow of the official law, there is quasi-formal extra-law with questionable legality and constitutionality. Parallel to law and extra-law, one also finds an increasingly visible layer of informal “extra-extra law,” which is developing a life of its own.
Law is defined here as a constitutional legal regime in which properly constituted authorities make and state legal norms (in a legal format) which are subsequently applied fairly by independent tribunals. There is a credible process of legal representation and judicial deliberation and a degree of transparency, and external accountability throughout the decision-making process.
China has been building a legal order based on law since the late 1970s and the achievement is very visible. There is, for instance, a comprehensive legal framework, in the formalistic sense at least, governing commercial transactions. A more developed legal system can be found in ordinary civil justice in dealing with a wide range of issues, such as family law and small tort claims. Chinese public law has also witnessed a gradual but significant development in enhancing regularity, transparency and juridification. Even in criminal law which is traditionally police-centric and highly politicized, there is a tendency toward increasing certainty, more effective judicial oversight, and stronger legal representation. Building a legal order is a long process and China has experienced its due share of setback and frustration in the process. But the larger trend had been clear: until recently, the sphere of law had been expanding, reaching out to and occupying more fields. The legal system had been used, and through the daily usage, strengthened and improved. The government, until recent years, had been encouraging legalization of social-economic life and trying to bring social problems to a legal resolution.
An extra-law is a system in which power is neither directly derived from properly constituted authorities nor subject to independent oversight (judicial or otherwise). In contrast with law, extra-law does not allow deliberation, representation and decision-making that can be regarded as judicial. It has a strong political or policy orientation and the whole system is geared to political expediency or convenience.
China’s legal reform in the past 30 years is characterized by a slow transition from extra-law to law. Yet, after 30 years of law reform and improved legality, the size of extra-law still looms large, especially in core policy areas, such as criminal law and public law.
Examples of extra-law abound. The first example is criminal law. A significant proportion of criminal justice matters are still governed by extra-law. There has been a large gray area when it comes to police powers to punish. Due to ideological commitment and historical legacy, criminal law punishes only “serious offences”, leaving “minor offences” to the prerogatives of the police. While approximately 100,000 criminal cases go through the criminal justice process each year, millions of offenses of different severity and nature are dealt with administratively by the police under the name of punishment, treatment, or rehabilitation. The hodgepodge of administrative penalties targets prostitutes, drug addicts, and a wide range of minor offenders, and the penalties may vary from a verbal warning to three years’ incarceration (in the form of laojiao/Re-education-Through-Labor). This administrative punishment regime is characterized by relative severity in penalty, lack of representation and due process, and uncertain legislative authorization.
The second example is anti-corruption enforcement. Further away from law, the in-house disciplinary mechanism of the Communist Party of China (the Party) for its members openly challenges China’s legal foundations. The Party’s disciplinary mechanism was initially designed to investigate and punish Party members for their misbehavior, but it has morphed into a powerful anti-corruption institution. Legal institutions are officially made subsidiary and accountable to this political mechanism. The disciplinary detention measure, shuanggui, which allows the Party to detain its members for interrogation, is particularly questionable and lies within the extra-extra law zone. While the Administrative Supervision Law of the People’s Republic of China appears to permit shuanggui (by ironically permitting “voluntary” detention), it can never be stretched to justify the extensive detention as practiced in the shuanggui system.
A final example is media governance. Media governance is essentially a lawless business in China. Traditional media is totally state-owned and controlled tightly by the Party. There is a well-established political mechanism, armed with strong organizations and detailed procedures, to guide and manage all media outlets in China on an on-going basis. Media governance is particularly an area in which Party norms and organs, instead of legal rules and institutions, are the ultimate authorities in the running of the media.
Extra-extra law comprises government measures that exist in some dark space, seemingly unrelated to any legal framework and devoid of any legal authority. Extra-extra law is an informal political institution characterized by a total lack of legality. It is used to advance some predatory and repressive government policies which cannot be justified by any law or extra-law. As such, extra-extra law is covered in secrecy and operates with no legal accountability. Except occasional and indirect admissions, such as the quasi-official admission of the existence of “black jails” for petitioners, extra-extra law does not officially exist, and, as such, extra-extra law survives and thrives because it is effective in achieving certain policy goals which cannot otherwise be achieved through law or extra-law. The legal system is regarded as weak and ineffective when it comes to sensitive issues. In these situations, intimidation through extra-extra law becomes expedient and even indispensible.
Again, examples abound. In the countryside, local governments are known to collect illicit fees and levies and have operated “black jails” (in the name of “study classes”) to detain and incarcerate peasants who are defiant. “Black jails” are also used to detain peasants in violation of family planning policies; to detain and intimidate petitioners who air their grievances in Beijing; and, more recently, to detain Tibetan monks for their alleged challenges of the official policy on religions. These repressive policies are extra-extra law because powers are exercised by the government on an ad hoc basis without any legal authorization or procedure, and little accountability.
The recent enforced disappearance of human rights lawyers illustrates law’s vulnerability and the readiness of the Party to resort to extra-extra law. Lawyers were typically snatched by internal security authorities in plain clothes, and detained in unknown places where they were interrogated for an extended period of time. They reappeared as quietly as they disappeared. Forced disappearance took place mainly in Beijing and was inflicted on lawyers who had represented clients in cases which were regarded as politically sensitive.
There is a fundamental difference between disappearance (extra-extra law) and abuse of criminal procedure (law). When the government uses, or even abuses the law, it still signals a commitment to law and a degree of fidelity to legal rules. There is also a degree of legal accountability and responsibility. That explains why human rights lawyers and others who were kidnapped may have demanded their day in court – so that abuses could be brought to the attention of the law and public scrutiny. A mere legal trapping may not be sufficient to convert a political persecution to a fair legal process, but it is a necessary first step in developing a rule of law.
Legal rhetoric is important in both justifying and constraining state powers. It may not be possible to reduce law to total irrelevance without incurring a cost. Think about the judicial interpretation of the Supreme People’s Court (SPC) on the application of sedition and subversion to the 1989 democratic movement activists; think about the legal trappings that the Standing Committee of the National People’s Congress and the SPC painstakingly created to justify its prosecution of the Falun Gong (FLG), and think about the courtroom tension between judges and lawyers in some of the FLG trials. The mere fact that a criminal charge is laid necessarily means a degree of accountability. The path of law is a tortuous one, but as long as we have confidence that we are walking on that path, there is some degree of control and accountability, hence hope.
Extra-extra law also serves a fundamentally different objective. Enforced disappearance differs from criminal punishment in fundamental ways. In criminal punishment, the law targets past offences that an individual may have committed and the objective is to punish. In enforced disappearance, the focus is instead on the “risk” of an individual to the Party-state, regardless of what offences she or he may or may not have committed. Extra-extra law is thus applied here not for the purpose of punishing past offences, but to reduce future risk, with measures taking against individuals according to the specific personal profile to maximize intimidation.
Torture may also be used in both law and extra-extra law. But in law, torture is typically used to extract confession to establish criminal liability; while in extra-extra law, it is to inflict fear so that lawyers and others would not speak or act out. Intimidation is at the core of the extra-extra law. As such, in the enforced disappearance cases, no general norms apply; instead, there is only particularistic stratagem, tailor-made for a particular individual case. With intimidation at the center of the equation, we see a quantitative change of the method of repression.
The recent repressive episode may be surgical and limited in its scope of application and in the degree of brutality. But these may not be the core issues. The core questions are: is China moving towards a different doctrine of governance in the name of the ‘Chinese model’ where legal constraints are regarded as redundant and ineffective, and power is unconstrained in achieving its objectives? Is there a bottom line that must be maintained? What happens if the lawyers/activists cannot be silenced through enforced disappearance, and the intimidation backfires and generates more resistance? There is the ominous early sign that the state is willing to resort to the ancient concept of collective responsibilities in maximizing intimidation, so that pressures are brought to bear on spouses, parents, children, friends, colleagues, and even landlords to achieve the objectives. But a lingering question is: what’s next and how far an authoritarian state can go in silencing dissenting voices? There is no need to refer to the massive enforced disappearance cases in Argentina decades ago. Taiwan offered a vivid illustration of downward spirals toward extra-extra law — the Guomindang regime resorted to political assassination before its monopoly on power ended.
Repressive episodes are recurring events in the post-Mao era, and each generation of leaders have their repressive moments during their terms, especially towards the end of their terms when they hand power to the next generation of leaders. Deng Xiaoping sent tanks to suppress the 1989 democratic movements and Jiang Zemin smashed the FLG and wiped out the China Democracy Party (CDP), sending most of the CDP members to lengthy prison terms and into exile. New leaders when they come to power appear to be politically open and reform-minded. This appearance enhances expectations and invites challenge. Once that happens, the new leaders typically move decisively to demolish the challenges, creating their repressive moments and leaving a conservative legacy.
What distinguishes the most recent repressive episode from the previous ones may be the potential to institutionalize extra-extra law and a strong sense of entitlement. China is gaining impressive economic power under the Party’s leadership and the Party has become more confident in its legitimacy and ability to rule in its own way. At the same time, the Party is facing unprecedented social, economic and, to a lesser degree, political challenges. It feels its vulnerability strongly. But law is not currently perceived to be the most effective tool to handle the emerging crisis.
It is the combination of the Party’s confidence and its vulnerability that has produced the recent repression and explains China’s recent turn against the law. But at what medium- to long-term cost? It is hard to see the deployment of extra-extra law as being part of any sort of thought-through, long-term strategy to shore up political support and ability — the use of extra-extra law is, above all, a grimly expedient policy. The more widely and longer it is used, the less effective it becomes because it generates entrenched resistance. Exhibit A in 2011 for the veracity of this theory, albeit drawn from a wide array of choices, is Syria.
China is well placed, far away from the sort of wretched spiral of state-driven political violence that is convulsing Syria in 2011. A very good reason, amongst many others, is that China has seen for some time that some genuine striving towards a society based on real law offers one of the best political buffers against being drawn down the appalling political pathway epitomized by Syria today. The increasing deployment of extra-extra law, however, undermines that buffer in a frightening way.