SUN WUKONG No rhyme or reason to China's rule of law
By Wu Zhong, China Editor
HONG KONG - Justice is the fundamental principle and ultimate aim of the rule
of law. Justice should be blind in the sense that everyone is treated equally
before the law. Hence for a country to have laws is one thing, to have the rule
of law is quite another.
Written laws have been a part of the Middle Kingdom at least since the
beginning of its dynastic history more than 2,000 years ago. But it is
generally agreed that a tradition of rule of law is lacking in China, as
opposed to the West. Many have blamed this on the strong influence of
Confucianism. One of the Confucian
classics, Li Ji or The Book of Rituals stipulates, "Criminal law
does not apply to senior officials and the etiquette [does] not apply to common
people." In other words, laws must and can only be enforced discriminately.
With his faith in the Marxist theory of class struggle, former paramount leader
Mao Zedong took the discriminative enforcement of law for granted as he
strongly believed laws were nothing but a tool for one class to suppress
another.
Admittedly, progress has been made in establishing the rule of law in the past
three decades of economic reform and opening up, which is needed for China to
embrace a free-wheeling market economy. But to date, China could hardly be said
to have a sound rule of law due to the lack of reforms in its political system,
which is not really in favor of a rule of law and, perhaps, also due to strong
traditional influence. Complaints have often been heard that laws do not apply
equally to everyone and that law enforcement is often used to serve political
or other purposes.
The persecution of dissidents aside, a fierce controversy rages over the
application of law to convicted corrupt officials. According to China's
criminal code, effective since 1997 and revised in 2006, a person convicted of
taking bribes of 100,000 yuan (US$14,625) can receive anything from a 10-year
prison sentence to the death penalty. In 2000, the vice governor of Jiangxi
province, Hu Changqing, was executed for taking bribes worth 5 million yuan.
But since then, few of the senior officials convicted of taking bribes of much
larger amounts have been sentenced with capital punishment.
In a recent case, Shi Xue, senior executive of Hainan Huaying International
Trust and Investment and board chairman of Dalian Securities, was convicted for
taking bribes worth 260 million yuan, embezzling 120 million yuan in public
funds and forging documents in an attempt to fraud the central bank out of 1.4
billion yuan. He was given death on a two-year suspension, which normally would
be reduced to life in prison. Even Chinese official media have questioned the
court ruling. A commentary in the influential China Youth Daily demanded an
explanation as to why Shi's life was being spared.
In fact, as China's economy develops fast, the amount of "dirty money" a
corrupt official takes is also fast inflating. The stipulation in the current
criminal code seems outdated. For if taking 100,000 yuan in bribes would truly
lead to the death penalty, then all convicted corrupt officials would have been
executed. China may need to revise this clause. But if the rule of law is to be
upheld, a law must be strictly enforced before it is revised. Therefore, it is
justified to demand an explanation of how much in bribes one must take to
receive a death penalty if 260 million yuan is still not enough in Shi's case.
Otherwise, it is natural for the public to suspect that criminal law does not
apply to senior officials.
A recent development in Guangdong, China's richest province, now arouses
suspicion that criminal law does not apply to the rich either.
On January 6, the Guangdong provincial high procuratorate issued guidelines for
public prosecutors on how to handle criminal cases involving enterprise
executives in the face of the global financial crisis. According to the
guidelines, dealing with such cases should be delayed if the offences are not
very serious so as not to interrupt the business operation of the enterprises.
Detention and arrest of legal persons, senior executives and key technicians of
enterprises suspected to have conducted criminal offences should be avoided if
prosecution would not be affected, so as to ensure the enterprises' normal
operation. Caution should apply in making decisions to seal up, hold in custody
or freeze assets of enterprises suspected of criminal offences, especially
those which face difficulties in business operations.
The guidelines also set "Six No's": Not to arbitrarily freeze bank accounts of
an enterprise; not to arbitrarily seal accounting books of an enterprise; not
to cut communication channels of an enterprise; not to arbitrarily release any
report that would hurt an enterprise's reputation; not to arbitrarily detain
key technicians of an enterprise; and not to affect an enterprise's
negotiations on a major project or its production by law enforcement.
A senior procuratorate official gave an example to the Guangdong media to
illustrate the new guidelines. Not long ago, the public prosecutor collected
enough evidence to arrest a senior technician of an enterprise suspected of
taking bribes worth 110,000 yuan.
But the enterprise was in the middle of negotiations with a Japanese company on
a certain project and the suspect was the only person on the Chinese team with
technical knowledge about the project. So they decided to let him go free so he
could participate in the business negotiations. He was not detained for
investigation until the negotiations concluded. The example only helped explain
the delay in handling a case, as the official stopped short of explaining the
legal grounds for the new rules. It is not clear either whether Guangdong
issued the new rules on Beijing's instructions.
It is clear, however, that the issuance of such rules serves as evidence that
Guangdong's economy is in such a dire predicament that the authorities are now
desperate.
China's efforts have been damaged badly by the financial meltdown in the United
States and the European Union. Guangdong is China's major export base, its
exports accounting for more than one third of the country's total. Most of the
small- and medium-sized enterprises are labor-intensive, export-oriented ones
with investment from Hong Kong and Taiwan. Many of them have already faced
difficulties with the appreciation of the yuan and the sharp increase of costs
in recent years. The global financial crisis has simply served as the last
straw to force a number of them to go under.
In October and November, Guangdong Communist Party chief Wang Yang twice
publicly cheered the bankruptcy of such "backward enterprises", saying the
global financial crisis was a god-given opportunity to help Guangdong rid
itself of the "backward productive force" so that Guangdong could "empty the
bird cage for new birds to settle down".
It is ironic that less than two months later, Guangdong now has to take a
u-turn policy by offering such protection for enterprises as legal immunity.
After all, before the province can attract "new birds", it still has to rely on
the "backward enterprises" to keep its economy running.
However, offering a certain group of people in society some legal immunity,
however limited, is a discriminative enforcement of law which flies in the face
of the rule of law.
In the short run, Guangdong's measure may be of some help to overcome its
current economic difficulties. In the long term, it further damages people's
fragile belief in the authorities' intention to establish the rule of law.
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