Perennial problems with corruption cases in China

By Jerome Cohen

There have recently been increasing signs of popular dissatisfaction with judicial handling of corruption cases in China. Of course, corruption cases are politically sensitive in every country and often involve influential defendants as well as accusers. Chinese courts are generally weak and unable to withstand political pressures to go along with what the Party-state demands. How can they overcome the instruction of the Party discipline and inspection teams and now the Party-run government supervisory commissions? It is much harder to vindicate rights in China’s corruption cases than in ordinary criminal cases, even if the case really involves only corruption rather than the continuing, if non-transparent, political struggle, local or national.

Thus far specific legislative improvements do not have much effect in Chinese practice. Moreover, it’s like putting a band-aid on a gaping wound. The new supervisory system does not offer significant protections against the arbitrary and lengthy incommunicado detention and torture that mark the criminal process even now, almost 70 years after the founding of the People’s Republic of China.

The fear that the current corruption investigation system engenders in the business and bureaucratic elites is undoubtedly slowing economic development. Certainly, democratic countries that are the principal hiding places for absconding corrupt elements are very reluctant to return fugitives to a country that plainly will not allow them a fair and independent criminal process.

China should face up to the need for genuine reforms in the administration of justice from the moment of detention through the appeal procedure. China should consider establishing special procedures for the handling of cases of returned suspects that could inspire the confidence of foreign countries and provide a model for reforming the regular criminal process.

China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

Term limits for the leadership are not usually found in dictatorships. The Chinese Communist Party’s proposed abolition of China’s presidential term limit means that it has forgotten one of the main lessons of Mao’s long despotism. The two-term limit was inserted into the People’s Republic of China Constitution after the Cultural Revolution ended and reflected a widespread desire to prevent the return of one-man dictatorship. Its abolition signals the likelihood of another long period of severe repression. This should prompt us to think of Chiang Kaishek as well as Mao and Yuan Shikai and, in a comparative Asian vein, of Marcos and Park among others. Of course, some recognize that Putin’s example may also have significantly influenced Xi Jinping.

Xi’s move will have a profound effect on world order. It will enable him to move more boldly and increases the risk of his acting arbitrarily and perhaps mistakenly in international relations. It will surely hinder China’s efforts to be respected for “soft power” as well as military and economic prowess.

Xi decided to strike while the iron is hot rather than wait for later in his new term when increasing problems might have made the change more difficult. His brash step has undoubtedly aroused profound concern among the elite. Many high Party personnel, bureaucrats, judicial officials, lawyers, intellectuals, academics and business people, mindful of the past Maoist dictatorship and the increasingly repressive and arbitrary government under Xi, have seen this coming and now, in social media and other informal ways, are showing their anxieties and opposition.

But not many public signs of protest can be expected, since he has stifled free expression in the past few years. There must be great grumbling and concern among the country’s elite and educated, especially since the same Party “proposals” that have eliminated term limits have also confirmed the establishment of the National Supervisory Commission that will make the regime more repressive and more free of legal restraints than ever, imposing what amounts to “the Inquisition with Chinese characteristics.”

There is big risk for Xi at home since, as it becomes more obvious that China’s problems are catching up with its achievements, the government will look less impressive and the masses will begin to lose their enthusiasm and hold the great leader responsible. The elite will be less surprised but less forgiving.

The external risk is more immediate. Xi’s bold consolidation of power will enhance fear of “the China threat”, and his ever greater repression will make people think of Stalin’s decades-long centralization of power, even though, one hopes, Xi will not engage in mass executions. He already is engaging in mass detentions in Xinjiang even though “re-education through labor” was abolished in name a few years ago.

These “proposals” are at least a 1-2 punch against the Constitution when we consider the simultaneous establishment of the National Supervisory Commission. People often wonder—even now—how in 1937 Stalin could have said: “We need the stability of the law more than ever.” while at the very same time displaying the infamous “purge trials” to the world and lawlessly executing huge numbers of people. Xi claims to be strengthening the “rule of law” while making certain that it will never get off the ground. Tell it to all the tens of thousands in Xinjiang who are locked up in Xi’s successor camps to the supposedly abolished “re-education through labor”.

National supervision commission and China’s silenced legal elites

By Jerome A. Cohen

The second plenum of China’s 19th Party Congress was concluded last week. It paved the way for amending the Constitution to establish a National Supervision Commission. But this proposed “reform” has encountered fierce misgivings, especially among three expert groups: members of the Procuracy, i.e., the national and local prosecutors; influential scholarly specialists in constitutional law and criminal justice; and human rights and criminal defense lawyers.

The anticipated Constitutional and legislative changes represent a huge setback for almost four decades of official, scholarly and professional efforts to establish a rule of law that will protect the rights of individuals in their dealings with the government and the Communist Party. The Procuracy has major institutional reasons for opposing the new situation, since many of its personnel will be reassigned to investigative work in the supervisory commissions that will in effect be largely lawless in terms of meaningful procedural protections for suspects. Moreover, the powers of those prosecutors who remain in the Procuracy will certainly be limited in their handling of cases sent to them by the supervisory commissions. Also, procurators, scholars and lawyers are plainly opposed to the changes for many other good reasons including the length of incommunicado detentions possible without any other check or restraint, the absence of access to counsel, the very broad scope of the conduct that can be punished, even going beyond the criminal law’s prohibitions to include alleged violations of Party discipline and public morality, and the very large numbers of people—far beyond only Party members—who will be subject to repression and fear.

These changes will create a nightmarish scenario that will counteract many of the genuine reforms to the criminal justice system that are being developed and currently discussed. Yet, after a courageous academic protest meeting drew harsh official reaction, no one has dared to speak out in a public way despite great hostility to the changes continuing to be expressed on a confidential basis.

Xi Jinping regards formal authorization of these changes, which have already taken place in practice in many places, as positive because it will give an official fig-leaf to a terrifying investigatory/punishment process that until recently has been largely practiced by the Party against Party members and that has been widely condemned as lawless by many critics at home and abroad. But this new attempt at official veneer is plainly not authentically legal, even in terms of the government’s existing legal system. The anticipated constitutional amendments cannot remedy the situation and will make major alterations in the governmental system that the People’s Republic imported from the former Soviet Union..

What is at stake here is the legitimacy of the country’s legal system in the eyes of the educated, articulate but currently silenced, influential elites. Political leaders, bureaucrats, business figures and their employees, prosecutors, judges, legislators, professors and especially lawyers have good reason to fear that they may be the next victims of a plainly arbitrary system. This is the Inquisition with Chinese characteristics!