How the party’s absolute power undermines its efforts to strengthen China’s rule of law

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Originally published by SCMP on October 19, 2016

When their decades-long efforts failed to stamp out rampant corruption even among anti-graft investigators and get law enforcers to actually abide by the law, China’s communist leadership should have understood that behind such crises lies not a failure of governance but rather the failure of an outdated political system.

In a document released last week, the Supreme People’s Court, Supreme People’s Procuratorate, and the ministries of public security, state security and justice jointly called for an end to the widespread and illegal use of coercion and violence to obtain evidence or confessions in criminal investigations.

This is not the first time Chinese leaders have tried to eliminate the malpractice. China introduced the rule of law following the launch of economic reforms in the late 1970s. Since then, the government has made impressive progress in setting up the legal infrastructure. For example, thousands of lawyers and judges have been nurtured and numerous Western-inspired laws and codes protecting property and human rights have been passed. Still, a creditable system based on true rule of law is still a long way off.

China’s Criminal Procedure Law forbids torture and requires judges to weigh evidence beyond a suspect’s confession, the result of criminal justice reforms that have been introduced since the 1990s and hailed as a major advancement in the protection of human rights.

However, such laws are not respected by law enforcers, who continue to gain forced confessions, through torture, ill-treatment and other illegal methods. This is best illustrated by the fact that China has one of the highest conviction rates in the world, with its prosecutors and police rarely losing a case.

Such illegal methods are more common in politically motivated cases. In November last year, Amnesty International said lawyers and activists detained in a nationwide crackdown are at “serious risk of torture and ill treatment”. In the same month, the Chinese Human Rights Defenders (CHRD) network found that, after studying interviews and data from more than 2,300 cases, the government had systematically failed to prevent torture, hold torturers accountable and respect the rights of victims. The leadership’s endorsement of using “TV confessions” – broadcasting political dissidents’ “confessions” on state television before a trial has taken place – reinforces this assessment. Over the past year, those who have made high-profile “confessions” on state-controlled television include journalist Gao Yu (高瑜), human rights lawyer Zhang Kai (張凱) and book publisher Gui Minhai.

The party knows the viability of communist rule depends more than ever on its ability to build a credible legal system. It understands the need for such a system to not only safeguard market development, but also fight corruption and abuse of powers by officials, which is eroding its legitimacy. The authorities want people to turn to the courts, rather than take to the streets, to resolve their grievances.

Notwithstanding this lofty aim, however, what the party really wants is for the rule of law to strengthen its one-party rule.

At the core of the rule of law is judicial independence. Yet, in China, the courts, the prosecutors’ office, the police and lawyers are under the party’s control, with its all-powerful political and legal affairs committee making all the important decisions.

This system contradicts the basic tenets of the rule of law, under which the law, and not arbitrary decisions by any government body or official, should guide governance. It’s clear the party’s absolute rule makes true rule of law impossible.

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