Tag Archives: rule of law

Rolling Over The Rule Of Law

Screenshot of website of Essex Court Chambers, London

OUR MAN AMONG m’learned friends in London draws our attention to a Financial Times report on the chilling effect resulting from China’s retaliatory sanctions on the United Kingdom for that country’s comments about Xinjiang. Our man is concerned because of nascent signs of self-censorship among lawyers wary of antagonising Beijing and how it suggests a broadening of the push to co-opt and coerce the commercial world into muting international criticism of Beijing’s policies in Xinjiang and, indeed, Hong Kong.

The nub of the story is that last month China sanctioned several UK members of parliament, academics and individuals for ‘gross interference’ for their comments about Xinjiang. The list included Essex Court chambers, a group of some 90 barristers, four of whose number had provided a legal opinion in January for the Global Acton Legal Network, a non-profit working with the World Uyghur Congress and Uyghur Human Rights Project.

The sanctions bar those named from doing business with Chinese individuals or entities, ban them and their families from entering China, Macau and Hong Kong and freeze their China-based assets.

Essex Court barristers specialise in commercial and financial litigation, arbitration and public international law. Chambers are a particularly English institution. They are not a law firm as it would be recognised elsewhere. They are the offices of barristers who are self-employed providers of expert legal opinion and advocacy in court under the English legal system. They are instructed case-by-case by solicitors, the other qualified lawyers in the English system, who deal directly with clients.

These distinctions may be lost in China. After the sanctions were announced, Essex Court removed from its website a news item about the four barristers who had written the opinion about Xinjiang and pointed out that as independent barristers, no other member of the chambers would have been involved in writing it. The China Daily headlined its report on that ‘Barristers in retreat on lies over Uygurs’ and reiterated the charge that the opinion had used ‘the same tone as that of some Western politicians and media outlets’.

Our man says solicitors will now be wary about instructing Essex Court or any set of chambers whose barristers take on work for groups or individuals critical of China. Arbitration work in China via Hong Kong’s legal system has been a lucrative source of business for UK lawyers. Similar work in Singapore and the tax haven and brass nameplate islands of the Caribbean will now be at risk.

The General Council of the Bar, the professional association for barristers in England and Wales, has called the sanctions ‘an attack on the rule of law’. London lawyers are now wondering who might be next and if or when, in that incremental way of pushing back Beijing now employs, the tactic might be employed against the big City of London and international law firms.

The Financial Times quotes an unidentified member of Essex Court saying that theirs is ‘the first set of chambers to be made subject to these sanctions . . . but it may well not be the last’. Our man adds that if Beijing can cower UK and US law firms, even just by making them shy off taking on cases and clients that would displease China, the notion of the independence of the rule of law in Wester legal systems would be weakened. It would be a significant victory in the fight to undermine Western values.

Addendum: Chen Yixin, Secretary-General of the Central Political and Legal Affairs Committee, gave a speech at a recent study session on Xi Jinping Thought on Rule of Law. 

Among selected passages from the speech:

Marxism believes that politics determines the rule of law, and the rule of law serves politics. The practice of the rule of law at home and abroad shows that there is politics in the rule of law, there is no rule of law divorced from politics, and there is no rule of law that transcends politics.

Equally as blunt:

From China’s national conditions and reality, we will take the road of rule of law that suits us, never copy the models and practices of other countries, and never take the path of the so-called ‘constitutional government’, ‘separation of powers’ and ‘judicial independence’ of the West.


As China moves closer to the center of the world stage, we must accelerate the strategic layout of foreign-related rule of law work, coordinate domestic and international governance, and better safeguard national sovereignty, security and development interests.

No one can say that Beijing is hiding its intention.

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Party Plenum Indicates Limits To Xi Jinping’s Power

THIS BYSTANDER DRAWS two points of note from the recently concluded Fourth Party Plenum, the four-day annual meeting of China’s 350 most powerful officials. The first is that President Xi Jinping has not centralized power as comprehensively as has been supposed. The second is that there is a distinction between the rule of law and rule by law.

Both points are significant in their separate ways. Xi needs to centralize power if he is to remove the obstacles that the most entrenched vested interests pose to his economic reforms outlined at the previous Party plenum. Xi wants to switch the economy from investment- and export-led growth to domestic consumption. It is a change to a no longer sustainable credit fueled model of growth that powered the past three decades of China’s rise as transformative as the policies of Deng Xiaoping that initiated it.

Xi sees his legacy as being on the same historic scale. Yet there are many powerful Party, state and military elites who have benefited in privilege and pocket book from the old economic model, and will not readily give it up. While Xi has extended his power to coerce them to do so faster than many had expected before he became China’s pre-eminent leader, this plenum has shown that his drive to centralize power is not yet complete.

The PLA is a case in point. It holds a special place in the country’s politics for the obvious historical reasons and has considerable policy autonomy. With China taking on a greater global role, such autonomy gives it more opportunity to calibrate China’s “assertiveness” than may always be comfortable for Beijing. It also has extensive industrial and commercial interests from which senior members of its old guard profit

The plenum had been expected to approve a reshuffling of the Central Military Commission to promote allies of the president. On the basis of the communique issued after the meeting, that did not happen.

Nor was any light shed on the fate that is to befall Zhou Yongkang, the former Politburo Standing Committee member who is the biggest tiger to fall prey to Xi’s anti-corruption drive and the highest ranking Party member be investigated for corruption in many a year.

On both scores, that suggests divisions of view at the top. At the very least, there are still obstructions that Xi feels he cannot yet move.

The communique’s main point of commission as opposed to omission was changes to the judicial system, the plenum’s headline issue. The Party remains firmly in control of the legal process; a democratic separation of powers was never on the agenda, even though many believe that China will not be able to make the economic transition Xi desires without commensurate institutional political, social and legal changes.

For any foreseeable future, the judiciary remains subordinate to the leadership of the party and national security. Top leadership will still be able to control cases at the provincial or national level in which it has a pressing political interest. Rule by law; not rule of law.

That has tempted some commentators to suggest that nothing is changing. There are significant changes at the lower levels, however. Local judges will no longer be appointed and funded by local officials but by provincial or national authorities. That should break the commonly cosy relationship between local officials and local courts. It would then be more difficult for corrupt local officials to remain immune from accountability, a widespread popular grievance.

That in itself won’t shift for Xi any of the big obstacles blocking his economic reforms. It will, however, help to break up the endemic institutionalized corruption at the level that has the most impact on most people’s daily life. If he is still not able to move all the big rocks at the top that he would like, he can still remove a mass of little obstacles at the bottom.


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Justice Done And Dusted

The Hefei City Intermediate People's Court in east Anhui Province hands down the death sentence with a two-year reprieve to Gu Kailai for intentional homicide, August 20th, 2012

The suspended death penalty imposed on Gu Kailai neatly completes the official narrative that the murder of British businessman Neil Heywood was an exceptional case, the act of a single person under psychological stress. Gu will now disappear into the obscurity of what is likely to be life imprisonment. She has also been stripped of her political rights for life.

Suspended death sentences are typically commuted to life imprisonment after two years of good behavior. Her princeling connections will have contributed to the court’s leniency. So, too, will have her cooperation with authorities. She played what the court called “a positive role in the investigation,” did not contest the murder charge, which allowed a swift and unrevealing trial. Nor will she appeal the verdict.

That as good as wraps up the case while keeping at arms’ length politically awkward questions about what if any involvement there was on the part of Gu’s husband, the disgraced former Chongqing Party boss, Bo Xilai, in either the murder or in orchestrating its attempted cover-up by police, and, potentially more embarrassing for the Party leadership, about the web of probably corrupt but lucrative business deals that so enrich the families of the country’s political elite. The absence even of Bo’s name during Gu’s trial makes this the no-show show trial. But the Party can now deal with Bo as an internal disciplinary matter with his supporters and opponents among the senior leadership battling it out behind closed doors over the extent of Bo’s political castration. The rule of law has done its job–and the dust brushed under the carpet.

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Gu Kailai Trail Opens

Gu Kailai’s murder trial has started. It will likely be a swift and underreported affair, with the verdict, if not necessarily the punishment, in little doubt. Top Party leaders have kept a tight grip on the judicial investigation and the political narrative so far. There is scant reason to suspect that will change on either front.

The trial is intended make two public points. First, that no Party member, their spouse or family is above the law, more particularly, that even a princeling family isn’t above the law if it poses a threat to the inner sanctum of Party power–and the individuals who wield it. Second, that Gu, and by extension her husband, the politically disgraced former Chongqing party boss Bo Xilai, are exceptional cases. Together the Party hopes that will ring fence an affair that has shaken it far more than it cares for.

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Bo Xilai’s Wife Charged With Murder

Gu Kailai, wife of disgraced for Chongqing party boss Bo Xilai, has been prosecuted for murder, according to state media. She and a family employee, Zhang Xiaojun, are said to have ‘recently’ faced court proceedings in connection with the suspected murder of British businessman Neil Heywood. Heywood was found dead in a hotel in Chongqing last November. He is believed to have been poisoned.

Bo’s fall was followed by greater openness on behalf of authorities about reports involving corruption on an immense scale. Party leaders face the challenge in the run up to a leadership transition that formally starts later this year of managing the corruption scandals in a way that doesn’t damage the Party’s long-term credibility and put at risk its authority to hold a monopoly on political power. Hence the development of an official narrative that Bo and Gu are an exceptional case being handled through ordinary legal proceedings.

Gu’s treatment suggests that the leadership is having to take the process of rule of law seriously even if her trial is a showcase of the claim that nobody in China is above the law. Whether justice or the law will be served in the long term is yet to be determined. As state media put it,

The facts of the two defendants’ crime are clear, and the evidence is irrefutable and substantial. Therefore, the two defendants should be charged with intentional homicide.

The Hefei Intermediate People’s Court has received the case according to law, and will hold a trial on a day to be decided.

Little doubt in this Bystander’s mind about the likely verdicts.

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Moving On

Not very, is the answer to the question we posed about the stickiness of the initial deal between Beijing and Washington over the activist Chen Guangcheng. The deal’s second incarnation, now seemingly in the making, will let Chen go to the U.S. to study law, accompanied by his family. There, if history is prologue, he will fade into anonymity.

Beijing has in the past been ready to let dissidents and activists leave the country, if they go quietly. Chen’s flight from illegal house arrest by provincial officials in Shandong to the refuge of the U.S. embassy in Beijing and then his change of mind about staying in the country has brought more international attention to his case than Beijing is comfortable with. That has raised the hackles of interference in domestic affairs. But Chen is not of great importance to central government in the greater scheme of things, and certainly of lesser importance than he has become outside the country, particularly to those in the U.S. who see his case providing political capital in an election year. Beijing just wants the matter done with, so it can get on with dealing with its bigger problems.

It has made the point that if Chen is to go into exile, it will be on Beijing’s terms, not Washington’s. That sets a certain deterrent to would-be copycats. This has hardly been a high point in the China-U.S. relationship, even as it has simultaneously highlighted the fragility and importance of that relationship. History, we suspect, will ultimately judge the Chen affair as no more than a footnote in the development of the relationship and of the rule of law in China.

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One Law, Two Systems

The law is ruling overtime in China, and doing so under several spotlights that cast it in an uneven light.

Xie Yalong, the 56 year old former head of China’s professional football league, has just gone on trial, the most senior official to date in the corruption scandal that has engulfed the sport and captured the attention of a nation. Dozens of referees, players, officials and coaches have been arrested since an anti-corruption investigation started in 2009. Xie has been charged with taking more than 1.7 million yuan ($270 million) in bribes. His successor, Nan Yong, faces similar charges.

Xie’s defence is that he is guilty but not as guilty as charged, and that he is a victim of the legal system, having been mistreated during the investigation. It is a line that resonates with many of the public, who are familiar with local official corruption and the heavy handed treatment that can be meted out to those who run up against it. As is emerging in the case of Bo Xilai, the disgraced former Party boss of Chongqing who is now being very publicly subjected to the rule of law, that can be heavy handed in the extreme. Some of those convicted during Bo leadership in the city are now petitioning to have their convictions overturned. Meanwhile, two officials from Wukan had been expelled from the Communist Party over illegal land deals that eventually led to the social uprising that saw locals run Party officials out of their town last year. Eighteen  others are being dealt with under the Party’s disciplinary procedures, a reminder that there are parallel systems of punishment.


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Bo A Boost To The Rule Of Law?

One unintended consequence of the Bo Xilai affair may be a huge boost for the rule of law in China. This Bystander acknowledges that that statement requires a leap of faith. While there has been a steady improvement in the quality of China’s legal system in recent years, particularly on the civil side, it remains an instrument of the state in a country where state, government and Party are one.

China’s leaders are long accustomed to using the courts for political ends. Now they are trying to use the rule of law to contain a potentially corrosive case of murder, extortion, money laundering, possibly sex and certainly corruption, financial and political, on a large scale. That, in itself, is a political end, of course. Reports that Zhou Yongkang, the Party’s security head and considered a Bo ally, is now under investigation will reinforce the suspicion that the Bo case is more political show trial than the execution of the due process of law, a suspicion readily nurtured by the opaqueness of the leadership succession battle underway in Zhongnanhai, the leaders’ compound in Beijing.

One way of looking at what is happening is that the Hu-Wen leadership has turned to the courts because the institutions of accountability within the Party are inadequate to offset the power of the political, family and business networks of senior Party members. Party discipline has been imposed individually, just as the country has been run by a federation of individual leaders. If the Party’s security head is on the wrong side, so to speak, as may or may not now be the case, that creates a gaping hole in Party governance.

As we noted earlier, the emerging official narrative of the Bo case emphasizes that no Party member, their spouse or family is above the law, even if that family is one of princelings. That has been the Party line for some years, even if not one backed by precedent setting action. Once the Bo case is done, and the leadership succession settled, it is quite possible that China’s new leaders will slip back into the old ways, and the rule of law returned to the shelf, its purpose served. Yet even if a credible investigation and conviction is carried out, the leadership still faces awkward questions. Why wasn’t the Party holding one of its rising senior figures more accountable? Is Bo a unique case, or does the Party have a systemic problem with its governance? Will Bo’s case be followed by others, leading to a prolonged and destabilizing power struggle, as has happened at other times of leadership transition?

In a country where connections fuse into corruption in a systemic way, the precedent of a Bo conviction would be threatening to all top leaders. Yet, many Chinese may like what they see in such a precedent being set. With the inevitable slowing of the economic growth on which the Party has based its legitimacy to monopoly rule, rising concerns about the threat to social stability posed by growing wealth inequality and increasing popular discontent at the perceived corruption of local officials, the leadership will need new props for their legitimacy. Once out of its bottle, the rule-of-law genie may prove hard to put back.

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An Italian Lesson For China

There is an indirect lesson for China in Italy’s part in the eurozone crisis. It is drawn out by Daniel Gros, director of the Centre for European Policy Studies in Brussels, who asked a straightforward question, what is holding Italy back? Though he acknowledges that the country has underperformed economically over the past decade both relative to its eurozone peers and relative to its earlier self, he also observed that Italy’s three most important measurable growth factors actually improved in both absolute and relative terms over that time:

  • Investment in physical and human capital; the former is high and the latter is improving rapidly.
  • Structural indicators in terms of product and labour market regulation (all improving absolutely and relative to Germany according to OECD indicators).
  • Investment in R&D (improving).

The only indicators that have deteriorated absolutely and relative to the core of the eurozone, Gros finds, are those for governance. Italy’s performance has deteriorated dramatically over the last decade on the three governance indicators the World Bank considers most important for an economy: the rule of law; government effectiveness in general; and control of corruption. Italy now ranks lower than any other eurozone country on all three.

China ranks even lower than Italy on those three measures. Over the past decade its progress on governance has been mixed (better on rule of law and government effectiveness, worse on control of corruption). This Bystander has noted before the political boulders that are strewn along the path of further reform in China, particularly those caused by the tight intertwining of Party, state and government which can make vested interests robust and persistent.

We don’t underestimate the difficulty of changing a country’s political culture to support good governance of the body politic, yet Gros’s tart observation about Italy–that “progress on these (three governance) fronts might in the end be more important for growth than the reforms now being imposed by the EU,”–could apply equally to China as it moves into its next phase of inevitably slower growth.

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