China would benefit from legal reform – but its future looks bleak

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Originally published by The Globe and Mail 13 August, 2021

On Tuesday, a Chinese court in the northeastern city of Shenyang upheld the death sentence for Canadian citizen Robert Schellenberg, who had been convicted of drug trafficking. Just a day later, a court in the nearby city of Dandong sentenced fellow Canadian Michael Spavor to 11 years on vague espionage charges. The coming days may also see the announcement of a verdict in the case of Michael Kovrig, a former Canadian diplomat put on trial for spying in March, 2021.

Meanwhile, the extradition case against senior Huawei executive Meng Wanzhou, who is also the daughter of the Chinese company’s extremely well-connected founder Ren Zhengfei, continues. Just a week earlier, a court in Vancouver began what could be the final hearings in the years-long legal battle to extradite Ms. Meng to the United States to face charges that she violated U.S. sanctions against Iran. The case appears to be tied to the eventual outcomes of the Canadians detained in China.

What do these cases say about criminal justice in China, and about its legal system more generally? Quite simply, that the entire system remains under the compete control over the Communist Party. And despite efforts toward legal reform, the party finds itself in a trap of its own making: By worrying that independent courts and strong legal institutions could check its power, the party is avoiding embracing reforms that would bolster its domestic political standing and improve day-to-day governance.

It was not always thus. Starting in the late 1970s, the Communist Party launched a massive and decades-long effort to rebuild the country’s legal system, which had been decimated by the Cultural Revolution. Seeking both to rebuild its own tarnished reputation and to attract foreign investment, the party invested heavily in courts, prosecutors’ offices, and other key elements of a functioning legal system, and sent some of its best and brightest to study overseas at top law schools in Canada, the United States and Europe. It’s no exaggeration to say that the past 40 years has seen one of the most rapid transformations of a country’s legal system in human history.

The commitment to building a legal system was always conditional, however: The legal system needed to serve the party’s needs, and could never serve as a platform for actions that could threaten its authority. As a result, certain apolitical and technocratic reforms were given higher priority, while others – including efforts to enhance judicial independence – were kept off the table.

At a certain point, however, even seemingly apolitical reforms bumped up against the party’s political needs. If the courts are meant to adjudicate all cases according to the law, for example, how can they be used by the party to keep citizens – from courageous grassroots activists to high-profile businesspeople – in line? If criminal laws are reformed to protect the rights of the accused, might those reforms get in the way of the party’s desire to silence its critics?

Take the case of billionaire businessman Sun Dawu, for example. The head of a large agricultural products company in China’s Hebei province, Mr. Sun ignored a number of warnings to stop criticizing the Chinese government and avoid contact with activists and dissidents pushing for political change. He was arrested in March; in late July, he was handed an 18-year sentence for “picking quarrels and provoking trouble.” Mr. Sun’s trial was marred by violations of his procedural rights, and both he and other company executives were allegedly tortured while in detention. The U.S.-based rights group Chinese Human Rights Defenders called Mr. Sun’s conviction a “blatant attempt to punish Sun for his support of human rights.”


Average Chinese citizens also worry that they could be the target of police abuse, which has led to a crisis of confidence in Chinese policing. The lack of trust in the police on the part of average citizens has become so acute that physical attacks on the police have at times been cheered by the public. Public trust in the courts remains abysmally low, in part because would-be litigants know that the courts will follow the dictates of either the party or of deep-pocketed defendants, often at the cost of the rule of law.

The prospects for legal reform have nosedived under Communist Party Secretary Xi Jinping who, since taking office in 2013, has centralized party control over the courts. Mr. Xi also took key anti-corruption cases – always politically sensitive in the one-party state – out of the hands of prosecutors, and placed them under a new anti-corruption body that the party can more easily control. Though prospects for far-reaching reform had already begun to wane before he came to power, they now seem almost completely out of reach.

It’s true that a stronger legal system would block the party from arresting foreign nationals like Mr. Kovrig and Mr. Spavor to use as pawns in a political game. But losing that ability isn’t necessarily a bad thing for the Communist Party: Beijing’s foray into hostage diplomacy has come at a great cost to its international reputation, and has done deep damage to Canada-China relations that will likely take years, if not decades, to undo. An independent court system can save the party from its worst political instincts, and help it avoid costly missteps like the cases of the three Canadians.

Indeed, it’s in the Communist Party’s own interest to recommit to taking much-needed steps to build judicial independence. Any such moves, however, would come too late for Mr. Kovrig, Mr. Spavor and Mr. Schellenberg, whose fates now seem inextricably tied to that of Ms. Meng. The party’s handling of their cases is a tragedy for the three men and their families, and yet another blow to the effort to advance legal reform in China.

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