Balkinization: Activist lawyers and China's trouble with rule of law

Activist lawyers and China's trouble with rule of law

Lauren Hilgers

Two short weeks after Human Rights Watch published a report on China’s lawyers, called “Walking on Thin Ice,” China’s government released a list of priorities for 2008. The main focus of the NPC Standing Committee, according to a Xinhua report, will be improving “the socialistic legal system with Chinese characteristics.”

For China’s activist lawyers, this is not an encouraging statement. As the HRW report notes, Beijing has been highlighting the need for what they call socialist law in the past few years, emphasizing social stability over judicial independence. The campaign’s primary target is the country’s growing number of lawyers—they may be necessary to the development of the country's legal system, but some have proved to be a thorn in the side of China’s leadership.

The government is not all talk—its stance is reflected in an ever-tightening grip on the lawyers who take on politically sensitive cases. In one recent example, the lawyer Teng Biao led a group offering to represent the Tibetans who were arrested in relation to the riots that unfolded in March. Two weeks ago, those lawyers woke up to find their licenses to practice law, set to expire at the end of this month, will not be renewed.

The HRW also cites Chen Guangcheng, the blind “barefoot lawyer of Linyi,” and Gao Zhishen, a lawyer who volubly defended Falun Gong practitioners as prominent examples of the recent crackdown. Gao's current whereabouts are unclear; it was reported last September that he had been detained by the police. In 2006, Chen was convicted of damaging property and organizing a mob to disrupt traffic and sentenced to four years in prison.

At the core of the struggle between the government and China’s weiquan, or “rights protection,” lawyers lies China’s constitution and the much-celebrated rule of law. While wiequan lawyers take up causes that range from consumer rights to representing dissidents, the underlying assumption of all their arguments is the same: Chinese leaders are answerable not only to the Communist Party, but to the law and to the constitution.

This presents quite a conflict for China’s current leadership. To them, the constitution is a potentially restrictive document, and Chinese leaders have made no pretense of adhering to all its limitations. In a socialist state, the constitution is also subject to frequent changes. Socialist society is expected to evolve, and as the State represents the whole of the Chinese people, it is the State’s responsibility to update the framework of governance as they did in 1975, 1978 and 1982. It is the state that gives legitimacy to the constitution, not the other way around.

Here, however, China’s leaders are now running into trouble. In a near-constant crisis of legitimacy, the Communist Party has been relying more and more on the legal system to cement its own authority. Adhering to the rule of law and the constitution, said Jiang Zemin in a 1997 address to the National People’s Congress, ensures, “institutionally and legally, that the Party's basic line and basic policies are carried out without fail, and that the Party plays the role of the core of leadership at all times, commanding the whole situation and coordinating the efforts of all quarters.”

Ten years later, Hu Jintao echoed Jiang’s sentiments in his own NPC address. “The rule of law will be carried out more thoroughly as a fundamental principle, public awareness of law will be further enhanced, and fresh progress will be made in government administration based on the rule of law,” Hu promised.

These promises, along with laws that purport to rein in local governments, have helped set the stage for weiquan lawyers to demand greater rights for citizens and press for rule-of-law. These lawyers generally stay carefully within the confines of Chinese law and accept the current political system. With an increasing number of laws, weiquan lawyers have a growing arsenal.

Many lawyers maintain their primary focus on rights guaranteed by individual laws--the constitution itself is still considered non-judicable and judges remain reluctant to cite the constitution in their rulings. Some lawyers, however, appeal to constitutional rights by taking advantage of a section of China’s Legislation Law and sending requests to the NPC for constitutional reviews of certain laws and practices. (This practice is discussed at greater length in a forthcoming book by Stephanie Balme and Michael Dowdle, “Constitutionalism and Judicial Power in China.”)

With a growing number of lawyers and rising popular awareness of rule-of-law, China’s government is beginning to feel the pressure of the constitution weighing upon it. “Even if Statist Socialism prevails, the constitution is likely to play a more important role as a baseline for measuring the legitimacy of state actions,” says Randall Peerenboom in his book “China’s Long March Toward the Rule of Law”

“To maintain credibility, the ruling regime will have to take the constitution more seriously,” he says.

Posted 7:15 AM by Lauren Hilgers [link]

Comments:

"To them, the constitution is a potentially restrictive document, and Chinese leaders have made no pretense of adhering to all its limitations."

I can't imagine how awful it would be to live in a country where the leaders see the Constitution as restrictive and, therefore, make no pretense of adhering to it.

Oh, wait....

Never mind.

# posted by

JTM : 10:54 AM

The freer markets which China has adopted require the rule of law to work. Communism is essentially a medieval system and China has to make the progress the West took the past few hundred years to accomplish. The road is not likely to be smooth.

# posted by

Bart DePalma : 11:50 AM

"and, therefore, make no pretense of adhering to it."

Leaders here do make a pretense of adhering to the Constitution. It's just not a very plausible pretense. And it's not very plausible on either side of the political divide.

# posted by

Brett : 12:11 PM

we are "living in intersting times" no ??

# posted by

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# posted by

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