‘The Shadow of the Black Umbrellas’

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Human Rights Watch China researcher Nicholas Bequelin writes, “Over the past two decades, China’s Communist Party has progressively embraced the rule of law as its principal method to rule the country.” But the effort, far from creating the stability the government so desperately craves, is sparking the opposite, Bequelin contends—corruption that fuels unrest. In yesterday’s Wall Street Journal he makes the familiar case that China needs an independent judiciary, not one beholden to the Party. It’s an interesting piece, worthy of some discussion. I’ll paste the whole thing on the site because the Journal is a paid site and the Human Rights Watch site will be blocked in China.

Beijing’s Rule of Law Retreat

By Nicholas Bequelin, Human Rights Watch China researcher

[Originally published in The Wall Street Journal, July 2, 2007]

The recent discovery of hundreds of slave laborers working in feudal conditions in brick kilns prompted a national outcry in China – and an unusually forceful reaction from the central government. The Communist Party immediately dispatched tens of thousands of police to break up the ring, arrested hundreds, and inspired strongly worded editorials in such state organs as the People’s Daily denouncing local officials’ lapses. President Hu Jintao and Premier Wen Jiabao also weighed in, giving highly publicized orders to launch a “nationwide campaign” to eradicate slave labor.

But this campaign mostly misses the point. Chinese officials and editorial writers may rail about local corruption and the evils of forced labor, but the root of the problem is something they are unlikely to do anything about: a woefully inadequate legal system that lacks true independence from the government, cannot address citizen concerns and exacerbates rather than alleviates local corruption.

Over the past two decades, China’s Communist Party has progressively embraced the rule of law as its principal method to rule the country. Importing entire chunks of Western-style legal institutions, the party established a modern court system, enacted thousands of laws and regulations, and formed hundreds of law schools to train legal professionals. It publicized through constant propaganda campaigns the idea that common citizens have basic rights, and elevated the concept of the “rule of law” to constitutional prominence in the mid-1990s.

In a one-party system hostile to carrying out the slightest political reforms – and in the absence of other checks on power such as a free press or an independent civil society – this formidable legal effort was meant to provide some stability and predictability to a rapidly modernizing society, as well as to impart legitimacy to the ruling order.

Yet huge numbers of Chinese citizens are still unable to use the system to seek justice. Predatory officials rob farmers of their land, forcibly evict residents from their homes, and cover up extravagant abuses of power – typically embezzlement, but also rape and murder. These officials close their eyes to labor exploitation and condone or profit from criminal rackets, human trafficking and illegal mining. There is even a term in Chinese for local officials’ collusion with criminal gangs: “black umbrellas,” which refers to officials who give protection to illegal activities in exchange for bribes.

With no avenues to seek redress, China’s citizens are abused and exploited on a shocking scale. The problems are not confined to small towns or rural areas: Recent prominent corruption cases include the police chief of Shenyang in Liaoning province, the party secretary of Shanghai and the head of the national food and drug administration.

The critical obstacle to reform remains the judicial system’s enslavement by the party. At every level, China’s key legal institutions – the police and the courts – are under the authority of the party’s political and legal committees. Through these institutions, local power holders can easily instruct the police to abandon investigations, foreclose legal challenges, dictate the outcome of particular cases to judges, or frame protesters and activists on vague charges of threatening state security and social stability. Granted, when the party’s interests and justice align, China’s courts function reasonably well. But the overwhelming powers of party officials over the judiciary are an open invitation to abuse them.

The growing “mafia-ization” of local governments and spiraling social unrest attest to the urgent need for a functioning legal system. Reports of riots and other episodes of disorder are increasingly frequent. Last month, no less than eight riots and large-scale demonstrations were reported in different parts of the country, arising from issues as diverse as Guangxi’s family planning policies, the construction of a Xiamen chemical factory, the beating of a Chongqing street hawker, impunity for a police-connected murderer in Sichuan, and even a protest by retired Guangzhou soldiers for their pensions. The government’s recent claim that social unrest was on the decline now has to be called into question.

Unfortunately, there are no signs that Beijing intends to empower the legal system to operate in an effective and independent manner. In fact under President Hu, the party has abandoned its rule-of-law rhetoric to talk more about a “socialist” rule of law – implying that the party, not the law itself, remains supreme.

Top law officials like Luo Gan, head of the Political and Legal Committee of the Central Committee, have recently issued an order to purge the legal system of “negative Western legal concepts,” including fundamentals such as judicial independence. But nowhere is the authorities’ attitude towards an autonomous legal system clearer than in the wave of repression it has unleashed since last year on China’s nascent civil-rights movement, sentencing for subversion the country’s top human-rights lawyer Gao Zhisheng, jailing countless rights activists, using house arrest to silence many critics, and tightening control over the legal profession.

The brick kiln case is emblematic of these wider problems. Legal reforms take time, and it would be unreasonable to expect China’s courts to solve every social ill faced by such a large, developing country. But it is a mistake to think that the Chinese legal system can heal itself while the party refuses to relinquish any power.

It’s an even greater mistake to think that China can remain stable if it denies access to justice to its citizens, and continues to hide from the cleansing sunlight of a free press. Until it does, social unrest, slave labor and the shadow of black umbrellas will continue to grow.

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