A Sea Change for the Rule of Law in China

Over the past fortnight, the Chinese government has waged a judicial blitzkrieg across the country, arresting over 190 prominent human rights lawyers. The campaign is part and parcel of Beijing’s efforts to consolidate power---which can be seen in sweeping legislation enacted last month.

According to state media, authorities have specifically focused on a core group of lawyers working for the Beijing-based Fengrui Law Firm. The government claims that, while working on sensitive court cases, the lawyers used rumors and monetary incentives to illegally whip up public sentiment and slander the Communist Party. Civil rights activists contest the charges and worry that the government is in effect creating a pretext, which can be used later in order to detain other human rights leaders. At stake for them is the country’s “rights defense” movement, which seeks to expand judicial accountability through publicity and court proceedings.

Activist lawyers have not been the only targets of the operation. Several high-profile law professors have been detained, too, including Chen Taihe of Guilin Law School. In terms of prestige, though, none of those figures comes close to the most recent casualty of the country’s top corruption watchdog: the Vice President of China’s Supreme Court, Xi Xiaoming. On its website, China’s Central Committee for Discipline Inspection recently announced the detention of the country’s fourth-highest ranking judicial figure, saying that Xi was being investigated for “serious violations of discipline and laws,” a euphemism for corruption. Whether the jurist’s arrest is connected to the lawyers’ remains unclear, yet coincidental all the same.

This operation, or “purge,” as one prominent Hong Kong-based law professor put it, is notable not just for its speed, focus, and nationwide extent. Also noteworthy, and perhaps most unsettling for judicial reform advocates: Public confessions by some arrested attorneys. The latter have appeared on state television only days after their arrests---but before judicial proceedings have begun against the accused. Needless to say, such public remonstrations appear incongruent with the “rule of law/rule by law” that the Party emphasized in its recently-concluded Fourth Plenum.

The arrests are froth in a much deeper, legal sea change currently underway in China. At the heart of this shift is the country’s National Security Law---the essence of which is to empower the government to arrest and prosecute more freely, for reasons related to “national security.” The legislation, which entered into force only last month, has already attracted much attention from China-watchers, in part due to its broad and ideological rhetoric. There’s also the matter of what the law does and doesn’t do, practically speaking. Despite international attention and analysis, few concrete implications from the law can be teased out with any certainty. And that is one reason why the new legislation appears so dangerous.

In keeping with past Chinese precedent, the statute uses breadth and ambiguity as weapons, defining its key term---“national security,” naturally---as encompassing financial, political, military, ideological, religious, and social media aspects; and, to boot, as protecting the political regime, sovereignty, national unification, territorial integrity, public welfare and sustainable and healthy development. Moreover, as if one were necessary, the statute also includes a sweeping catch-all: the government can now take free reign to pursue criminal charges against actors in defense of other “major national interests.” There’s more: The law describes both hard military power and “harmful cultural influences” as threats, and establishes cybersecurity as a major national priority. And, despite the existence of the National Security Commission (NSC) (a governmental body formed in order to consolidate the Chinese national security apparatus), the law does not establish any specific body with oversight over the use of its newly-conferred authority. If all this has the feel of a power grab, that’s because it is one.

The national security statute may soon be paired with two others that are currently in draft form: one regulating cyberspace in China and one aimed at controlling foreign non-governmental organizations. Assuming enactment, the cybersecurity law would enshrine the government’s ability to shut off the internet in certain locales during “public security emergencies,” an already-common practice. It would force internet service providers to keep data collected within China on Chinese territory and require data stored abroad for corporate purposes to be approved by a regulatory agency. It would also emphasize a long-standing demand by the government that internet users create social media avatars using their real names, a stipulation also required by another Chinese legal provision---the so-called “WeChat Articles” (which Lawfare covered last year).

Though the NGO law likewise remains in draft form---and thus could change---its current iteration reportedly would put foreign NGOs under the oversight of the Ministry of Public Security, which is tasked with surveilling terrorist threats. Planned restrictions on foreign NGOs would include new taxes, unrestricted police access to offices and bank accounts, and mandatory hiring of Chinese accountants for audits, among others. If passed, such provisions would sharply limit the activities of foreign NGOs, including those working for judicial independence and rule of law in China.

The recently enacted and proposed legislation all fit into a long-standing effort under Chinese President Xi Jinping, which commenced in 2012. As noted here on Lawfare, despite its claims that Xi’s judicial reforms were meant to make the country’s system more transparent and responsive, Beijing never intended for true “rule of law” to take hold in China. The reality is much murkier. Instead, Xi and his colleagues have insisted on a compliant judicial system, one that efficiently handles citizens’ day-to-day complaints while never getting in the way of the regime’s survival. The reform’s defenders say this is all the more necessary, in light of the China’s economic stagnation: Despite intensive government intervention, the Shanghai stock market remains wobbly and Chinese debt continues to grow faster than the economy as a whole. Such trends have the Communist party worried, understandably so given the relationship between economic growth and the party’s claim to legitimacy. The last thing Chinese politicians want to add to this mix is a burgeoning, upstart judicial movement---something that recently enacted national security and judicial reforms, and a wave of arrests, seem likely to thwart.