News Overview 2015

China as a Constitutional State: An Impossibility?

The Chinese legal system is contradictory: on one hand, the government voted in reforms in the judicial system in the past two years; on the other, around 200 lawyers were imprisoned under obscure circumstances this summer. What exactly does the government mean when they talk about "socialist constitutionalism with Chinese characteristics"? This is what Professor He Weifang from Peking University and lawyer Sabine Stricker-Kellerer, Freshfields Bruckhaus Deringer LLP, have been discussing as part of the "Engaging with China" series. Heading: "Governing in Line with the Law - China’s Judicial Reforms under the Microscope" at the Berlin Representative Office of the Robert Bosch Stiftung.

Fāzhì – this term has shaped the debate about more constitutionalism in China over the past year. At the fourth plenary session of the Central Committee of the Chinese Communist Party (CP), it was decided in October 2014 to grant courts, judges, and prosecutors more independence and to protect them from the arbitrary decisions of the authorities and interference by officials. But what exactly does fāzhì mean? "While nations in the West are most often governed by the rule of law, this translates as ‘governing in line with the law where possible’ in China," said Christian Hänel, head of the International Relations America and Asia program area of the Robert Bosch Stiftung at the opening of the event.

Before the actual discussion, the moderator, Bernhard Bartsch, asked the roughly 100 guests whether they could identify a positive trend in China with regard to reforms in the judicial system. The colors green and red represented agreement and disagreement. Few hands were raised for either option. It was only when asked who was not confident enough to pass judgement or who was unsure that the majority responded. The experts on the podium were also unwilling to commit themselves. Lawyer Sabine Stricker-Kellerer, who founded the first European law firm in China, settled for a “pale light green,” while He Weifang outlined a rather skeptical perspective. The renowned law professor from Peking University and expert in constitutional matters and legal history criticized the tight control of justice by the party. Although around a fifth of the officials in the Central Committee now have legal training according to President Xi, this situation has not yet precipitated any real legal reforms. The reason behind this lies in the early days of Chinese reform policy in the 1970s. “Deng Xiaoping concentrated on the economy, while political reforms were postponed,” explained He, who was on American magazine Foreign Policy’s list of the "Top 100 Global Thinkers" in 2011.

As far as the current reforms under President Xi are concerned, a definitive judgement is difficult, according to He. Admittedly, there are an increasing number of well-trained judges, who, when in doubt, have refused to take responsibility for technically unsatisfactory verdicts. However, the continuing interference by party secretaries at all levels is unsatisfactory. He is also critical of the ongoing corruption campaign. "While the state is purporting to promote constitutionalism and combat corruption, civil servants are disappearing without a trial and are losing their rights. That is contradictory!"

Sabine Stricker-Kellerer also shared these views. A few years ago, she was optimistic that professionalization and reduction of the external influences on judges and courts could gradually repress the influence of the party. "The CP would then have had a legitimate win. Why do they not reprise the role of a silent, but powerful participant?" The German legal expert believes that this could reinforce the confidence of the people and companies.

Weibo as a platform

Professor He’s direct style and plain speaking are not appreciated by everyone in the country. Just a few years ago, he would still have been invited to internal expert meetings with the authorities and his name published in state media. Now he is excluded from this discourse. His name no longer appears in the newspapers. This is why he uses Weibo, the Chinese equivalent to Twitter, as a platform to air his views, where he has more than 1.7 million followers and many of his posts are commented on hundreds of times. The German government, however, wants He’s advice. Both the chancellor and Federal Minister for Economic Affairs Gabriel have already met with him. He advises them to present not only the Bundestag as a place of democracy to the Chinese authorities but also constitutional institutions such as the Federal Constitutional Court in Karlsruhe. The Chinese government is under pressure, as it is not only intellectuals, but also civil servants and companies, who have demanded legal certainty. "Show them that your constitutional court protects the basic alignment of the system – that it practically hovers over the normal courts," recommends He. That will still the Chinese authorities’ fears that lower levels of jurisdiction could leverage the entire system.

Generally, says He, the German government should highlight which values they stand for more strongly. For Stricker Kellerer, the matter is clear: "I am a universalist and am convinced that there are universally valid values." The Chinese side often argues that there is no legal structure "with Chinese characteristics." "But what is so special about the Chinese values when compared to the universal ones?" she asked. "Is there actually another scale of values or is it just current policy that is suppressing constitutionalism while we are actually adhering to the same content? This applies in particular to institutions who protect the weak and economic freedom." She therefore advises German politicians to "continue supporting constitutionalism and judicial reforms in China in the hope that other elements, such as party policy, will become less important."

In answer to the question from the audience asking what results the German–Chinese dialog regarding the rule of law had produced so far, Sabine Stricker-Kellerer gave the following response: "No matter which general or specific issue you choose, the main thing is that there is dialog about constitutionalism." He hopes in particular for support in formulating a civil code for China. Moderator Bernhard Bartsch summed up the discussion about the relationship between politics and the law with the following words: "On a certain major social network one would write: ‘Relationship status – it’s complicated.’"

(David Weyand, November 2015)

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