China Has Good Laws, But They Should Apply to the Party
Chen Guangcheng is the blind civil rights advocate from rural China who escaped house arrest in April 2012 and fled to the US Embassy in Beijing. Then-Secretary of State Hillary Clinton negotiated his temporary stay in the US to study law at New York University.
NPQ | On the 30th anniversary of the Chinese Constitution in early December, China’s new leader, Xi Jinping, said, “We must firmly establish, throughout society, the authority of the constitution and the law and allow the masses to fully believe in the law....No organization or individual has the privilege to overstep the constitution and the law, and any violation of the constitution and the law must be investigated....We must establish mechanisms to restrain and supervise power. Power must be made responsible and must be supervised.”
Do you believe that the new Chinese leadership is embarking on a genuine “rule of law” campaign in the wake of the recent Bo Xilai and princeling corruption scandals?
Chen Guangcheng | I think the idea that Xi Jinping will change as a result of the Bo Xilai affair is completely unfounded. The most important thing is to look at his actions. We have all heard enough nice talk, and the key now is to look at what he does. If there are specific actions taken, then we can believe the talk.
NPQ | What, specifically, would have to happen to indicate to you that this effort of the new leadership is genuine and a sign of progress?
Chen | For example, they could eliminate policies that restrict the formation of other political parties and press freedoms, and truly protect freedom of speech. They could separate the power of the party from the government, which now affects all levels of government, from the central authorities to the local authorities. Make the judiciary independent. Let the Party manage its affairs, and let the government carry out its duties according to the law. If they can do this, we will believe them.
NPQ | So, up to now they haven’t introduced any new measures that might mark a path toward change?
Chen | No. If they put out a time line, I would believe that. Unfortunately, at the moment, under the current system, the Communist Party sits brazenly above the constitution and the law and makes no effort to reform. How, in this scenario, are we to believe they will respect the constitution?
NPQ | Is the rule of law possible under a one-party system? Or do you believe it is only possible under a multiparty electoral system?
Chen | The law is a tool, and people should be treated equally under the law. This of course necessitates a supervisory system, which should have the power to counterbalance the party mechanisms that control the judiciary, and should have the power to demand improvements. This is a requirement for a pluralistic, multiparty system. Otherwise, no matter how strong your laws, it won’t matter in practice.
NPQ | The position of the Party is pre-ordained in the constitution. Does that mean that the constitution has to change in order for your views on the legal system to become reality?
Chen | To me, the laws under the current constitution are basically good. However, in China we have laws and we have a legal code, but we don’t have the rule of law, and no overseeing body to guarantee implementation of the law. Now, when the Communist Party violates the law, is it going to prohibit itself from continuing to do so? The problem is that in reality the CCP is above the constitution and the law.
The constitution does have things that should be altered, such as the preamble, which gives the CCP ultimate power and authority over all. This is part of the so-called basic principles of thought: maintain the leadership of the Party; maintain Marxist-Leninist-Mao Zedong Thought; maintain the dictatorship of the proletariat. This is absurd! Look at today’s proletariat. What high-level Communist Party cadre isn’t a complete consumerist? How are they the proletariat? It’s absurd! No one believes in that.
However, whether or not the Communist Party wants to change is beside the point, because social progress is inevitable. Willing or not, and whatever the form a change takes, the balance of power between officialdom and the people is shifting.
NPQ | The party now dictates who becomes the president and chief prosecutor of courts. To start down the path of an independent judiciary, Peking University legal scholar He Weifang recommends making this into a nomination process that requires approval of the National People’s Congress. What are your thoughts on this proposal?
Chen | Why would it be only the president and chief prosecutor? A democratic system depends on a lot more than a prosecutor. Direct elections should decide all level of administrative officials. And in any case I feel that this is what many people refer to as “reform.” This is useless. What China needs now is a transformation.