By Attorney Clive Ansley, Arvay Finlay, Canada
The crimes of the Chinese government against the practitioners of Falun Gong
are not in dispute. There is no doubt that the vicious and gratuitous violence
perpetrated on those who simply speak in favor of the movement or hold up Falun
Gong banners, the incarceration, torture and mass murder of Falun Gong
adherents, together with the government and media campaign of hatred and vitriol
against them, combine to meet the legal definition of genocide.
What is difficult for many international observers to reconcile is how this
can occur in a country which is described by many influential opinion makers as
having made huge and rapid strides in implementing the rule of law.
Who are the opinion leaders who have shaped the world's view of the
"developing" Chinese legal system? Do their views accord with reality?
What do we mean when we use the term "Chinese legal system"? What role
do the Chinese "courts" play in the legal system? Does the Chinese
government have any intention whatever of implementing the "rule of
law", ever? Finally, even within the pathetically meager limitations of the
Chinese "legal system", have the government's actions conformed to
Chinese law as it exists today? When Jiang Zemin instituted this diabolical
campaign of genocide against Falun Gong, did he invoke any legal process or
legal machinery whatsoever? If not, how could the mass murder, incarceration,
torture and general persecution of such a huge number of people occur totally
outside the legal system? How could one man impose his will on the entire nation
and do it 100% extra-legally?
It is necessary to specifically address all these questions and understand
their answers before we can begin to comprehend what has occurred in China since
1999, and more generally what has happened and continues to happen to a wide
variety of dissident groups and individuals in China.
To much of the international community, China has in recent years been
portrayed as a country whose leaders are determined to implement the "rule
of law", a country which is steadily and rapidly constructing a credible
legal system which will meet all international standards and expectations. I
want to say at the outset that nothing could be further from the reality. I am
often told that I should not judge the Chinese legal system by measuring it
against mature and sophisticated systems in other countries which have developed
over many centuries. Let me say at once that that is not my standard of
measurement!
First, many commentators point out that China has only had a legal system
since July 1st, 1979, so "Of course, it's not perfect"; "Rome
wasn't built in a day"; "At least it's moving in the right direction,
right?" WRONG!
Two points:
Who Provides the Rose Colored Glasses through which the Chinese Legal System
is Typically Viewed?
Western Governments Influenced by Perceived Market Opportunities in China
Throughout all of modern Chinese history, the elusive (some would say
mythical) dream of the limitless Chinese market has obsessed occidental nations.
At the beginning of the current "Open Door" policy, one western
manufacturer of cosmetics waxed exuberant over the fact that the population of
China constituted a total of "two billion armpits" and that if even a
small percentage of their owners could be induced to purchase deodorants, this
would result in a bonanza!
Today there is no doubt whatever that trade and investment interests dictate
the China policy of almost all Western nations. They know that China invariably
moves to "punish" any member of the international community with the
temerity to criticize the Chinese leadership for anything. France, Denmark, and
Holland have all been hit hard with illegal economic reprisals for criticizing
China's flagrant violations of human rights standards.
Today, there is scarcely a government anywhere in the world willing to
jeopardize its market share in China by speaking out against this Chinese regime
which is arguably the most repressive and blatant abuser of fundamental human
rights among all the nations of the world. Crimes which may be denounced with
impunity when committed by the governments of Iran, Iraq, Saudia Arabia, or
Syria are systematically ignored when perpetrated by the government of China.
[...]
The International Business Community
The deliberate intent to misrepresent the realities of the Chinese legal
system and mislead the public is not readily discernible amongst investors and
traders with economic interests in China. Rather, the problem here is that the
business community as a general proposition simply does not care about human
rights issues. Such topics are considered "political" and it is a
hallowed shibboleth of commerce that political issues are and should be entirely
separate from business and economics. Also, large segments of the international
business community are not really aware of how the Chinese court system
operates, because they are almost entirely unaffected by it. Every contract
between a foreign party and a Chinese party in China, if the foreigner has
retained a competent lawyer, will contain a dispute resolution clause providing
for foreign arbitration, ensuring that the foreign party will never come within
the jurisdiction of any Chinese "court". That is changing, and the
perspectives of foreign investors may change also as a result.
But on those rare occasions when foreign investors are unable to avoid
confronting the realities of human rights abuses in any country whose government
is strengthened by their continued investment, amazingly the conclusion is
always reached that the best policy for influencing promoting democracy and
ending human rights abuses just happens to also be the policy which produces the
largest profits for foreign investors. The theory is that public criticism of
brutish torturers will only offend those torturers and make matters worse; in
contrast, public expressions of support, friendship, and solidarity will enable
foreign investors and their governments to privately persuade the torturers to
abandon their brutish methods.
Foreign Lawyers in China
The overwhelming majority of foreign lawyers practicing in China would say
that the Chinese legal system has improved tremendously over the past fifteen
years or so. I do not dispute this, so long as we are very clear in our
definition of "legal system". These lawyers are invariably speaking of
the impressive outpouring of statutes and regulations which have provided a
great corpus of legislation covering all aspects of investment in China and have
made business there much more predictable. It is today far easier for a foreign
lawyer in China to advise his clients on Chinese government policy toward
investment in specific sectors of the economy and of the viability of any
enterprise contemplated. But this "legal system" (read
"legislative framework") has nothing whatever to do with the
"court system"; nor does it have any relevance to establishing the
"rule of law" in China, a subject we shall explore further very
shortly.
What is the Role of the Chinese "Courts" Within the Chinese
"Legal System"?
The development of the Chinese "legal system" is truly impressive
so long as it is clearly understood that this term begins and ends with written
rules determined by the government alone, guiding behavior of foreign investors
and Chinese citizens. The "courts" have no powers of judicial review
whatsoever. There is reason to believe that at least some among the top Chinese
leadership have never read the Chinese Constitution and don't even know what
freedoms have been enshrined therein. When the government or individual
ministers violate the Constitution or any other statute there is no remedy
available. There is no such thing as the practice of constitutional law in China
because it is absolutely impossible for any Chinese "court" to hear a
constitutional challenge to any decision or policy of China's leaders.
It is essential to understand that China's so-called "courts" are
nothing more and nothing less than very low level administrative organs of the
Chinese Communist Party. There is not a modicum of judicial independence. There
are several reasons for this:
The fundamental issue here is that the Chinese Communist Party and its
leaders are above the law and are not subject to the decisions of the
"courts" in any respect.[5] On the contrary, the "courts"
are under the direct leadership and instruction of the Party and only the Party
has the right to interpret the meaning of any law or regulation. It follows that
no inherent "right" arises for any natural or legal person by virtue
of the law itself. As in a Lewis Carroll fantasy, "the law means whatever
the government, not the 'court', says it means." It is necessary at this
point to clearly differentiate between "rule of law, "rule by
law", and "rule of men".
"Rule of Law" v. "Rule of Men" and "Rule by
Law"
In the Warring States period of the late Zhou Dynasty, several centuries
B.C., during the flowering of a number of philosophical schools of thought, the
central debate among the leading philosophers of the day was whether
"peace, order, stability, and good government" was best served by
selecting good and virtuous men and placing all power in their hands, or whether
the protection of the citizenry was best realized by the enactment of a
comprehensive and detailed set of laws and making all human beings subject to
the law, rather than to the fiat of the leader of the day. This debate has
continued in China right to the present and has still not been resolved. But for
the moment, there is no doubt that the Chinese system embraces "Rule of
Men", and not "Rule of Law". The omnipotent rulers are above the
law and there is no way of making them subject to the law. But the confusion is
further exacerbated by the failure of many commentators and writers to
distinguish between "Rule of Law", and "Rule by
Law". "Rule of Law" means of course that the law itself is the
highest authority, all citizens without exception are subject to the law and
enjoy the rights enshrined in law, no individual is above the law, and any
dispute concerning the meaning of the law is resolved by an independent and
competent judiciary. It requires no more than a glance at the machinery of
"justice" in China to realize that according to these criteria, the
Chinese system does not begin to approach the prerequisites for the "Rule of
Law". Again, we are not judging the Chinese system by Western standards.
The Chinese Communist Party/Government claims to have already instituted the
Rule of Law in China. It is perfectly fair and appropriate to judge the system
against that apocryphal claim. There is no doubt that the Communist Party/Government has attempted to
utilize "Rule by Law" as a tool in maintaining its complete and
total dictatorship over the Chinese population. Prior to 1979, there was a total
absence of codification, which meant that for Chinese citizens they had no way
of knowing when they were likely violating government "standards" and
thereby jeopardizing themselves unwittingly. For foreign investors, it meant
they had no way of ascertaining in advance whether the government would allow
foreign investment in a given economic sector, or if so, whether the government
would require them to joint venture with a Chinese partner, or whether it would
require the Chinese joint venture partner to hold a majority interest. Putting
the rules in writing made government more efficient in all areas. But when the
government changes its mind or policy, whether on criminal or investment
matters, it simply ignores and over-rides the law. Because the "Rule of
Men" prevails, utilizing "Rule by Law" simply as a tool,
no force, effect, or authority resides in the written law itself when the
government decides to adopt a different stance. Let us consider how this state of affairs applies to the ongoing Genocide
being perpetrated against the Falun Gong. Article 35 of the Chinese Constitution provides that Chinese citizens enjoy
freedom of speech and freedom of assembly. Article 36 provides that Chinese
citizens enjoy freedom of religion. Yet anyone in China today who displays a
Falun Gong banner, speaks in support of Falun Gong, or is found to be a Falun
Gong practitioner, is subjected to almost unimaginable brutality in public while
offering no resistance whatever to the police thugs who arrest them. They are
then incarcerated without charge and murdered by the hundreds while imprisoned.
On what basis have the constitutional rights of these people to freedom of
speech, assembly, and religion been suspended? The answer is simple. One individual, Jiang Zemin, exercising power in the
same manner as the emperors of old, and without invoking any law or involving
any court, has declared Falun Gong to be an "evil cult". To this day,
no charges have been brought and no legal process invoked against Falun Gong
practitioners. To be sure, ordinary criminals being sentenced to death for mass
murders and other heinous crimes are, after the fact, falsely declared to have
been Falun Gong adherents by a Chinese media which publishes whatever the
Chinese Communist media orders it to publish. But neither Falun Gong nor any
individual practitioner has ever been afforded the opportunity to mount a
defense in court against the accusations of Jiang Zemin. This entire genocidal
pogrom has been based on nothing other than the determination by one
megalomaniac that the movement constitutes an "evil cult". In the face
of this one would-be emperor's individual decision, constitutional guarantees
are worthless and no law or court can come to the aid of Jiang's victims.[6] [...]
Conclusion
There is no legal system in China available to protect the victims of the
brutality routinely dispensed by China's rulers. This deficiency should not be seen as simply an indication that the system is
still developing. China's political system is completely based on the principle
of the Communist Party's absolute authority over all aspects of society and the
subordination of all governmental, social, media, and judicial institutions to
the Party. Neither Jiang Zemin, who almost certainly continues to manipulate the
current leadership from behind the scenes, nor the Communist Party itself, has
any intention of ever implementing the "Rule of Law" in China, for
reasons which are self-evident. The "Rule of Law" is absolutely
anathema to the continued power of the Communist Party and its perceived right
to exercise total dictatorship over the Chinese polity. In short, Jiang Zemin has been able to impose his will in implementing the
mass murder and torture of Falun Gong practitioners simply because in reality,
the old emperor system of government continues today in China in the modern form
of the Party Dictatorship. ******************************************** [1] This effectively means control by the Communist Party, because the Party
is in total control of the National People's Congress. ***************** Clive Ansley's Short Bio ***************** Mr. Clive Ansley has been actively involved with China and Sino-Canadian
relations for nearly forty years. He speaks and reads Chinese and holds both
undergraduate and graduate degrees in Chinese Studies from Canadian
universities, as well as a graduate degree in Chinese Law from the School of
Oriental and African Studies, University of London. A former Canadian professor of Chinese History, Civilization, and Law, Mr.
Ansley taught Chinese Law for six years at the University of Windsor and the
University of British Columbia. He also taught in the Law Faculty of
Shanghai's Fudan University in 1984 and still holds the title of Advising
Professor at that institution. More recently, he taught International Economic
Law at Shanghai's Tongji University. Mr. Ansley has studied the new Chinese
legal system since its inception in 1979, and has published and lectured
widely on Chinese Law. He has also appeared in a number of foreign court
proceedings as a recognized expert on Chinese law. In April of 2003, Mr. Ansley joined Arvay Finlay, a prominent Canadian
litigation firm renowned for its landmark victories in a number of human
rights cases. After a long career representing foreign corporate concerns in
China, Mr. Ansley now dedicates most of his working time to his life long
interest in human rights.
[2] Organic Law of the People's Procuratorate, Article 5(4).
[3] The average salary of a Chinese "judge" is about US$ 250 per
month, or $3,000 per annum. But his annual income is often more than $120,000.
[4] I use the word "virtually" because this statement is only about
99% true. The absolutely accurate statement is that made earlier: 100% of all
"judgments" are politically, rather than judicially, driven. There are
rare occasions on which a victory for a foreign litigant is needed because the
credibility of the "court" system is under attack. The Party
communicates this to the "court" and the foreign party will then win
irrespective of the legal merits of his case. But these victories are invariably
small, or involve very special circumstances.
[5] Obviously, there have been instances of fairly high ranking leaders being
convicted by "courts" and in some cases even executed. But it must be
understood that without exception these cases have all been ones in which the
politician ran afoul of more powerful leaders. The Party leadership then decided
on the punishment and simply used the "courts" to legitimize their
decision. It is utterly impossible for a prosecutor to charge a leader unless
the Party has so ordered, and it would be equally impossible for a
"court" to try a leader without a directive from the Party.
[6] Even by the standards of the Communist dictatorship, the decision to
physically eliminate the adherents of Falun Gong was extraordinarily
authoritarian. It appears that Jiang's motion to launch this persecution was
overwhelmingly opposed within the Politburo and not one other leader supported
him in the vote which was taken. However, being a minority of one did not
prevent Jiang from imposing his will on the Politburo and on the Chinese people.
Jiang quickly ordered the media to demonize Falun Gong and a torrent of
vilification poured forth from the media monopoly controlled by the Communist
Party, which has not abated to this day. It is a smear campaign reminiscent of
many others in which the press has been ordered to vilify a particular
individual or organization with lurid (and unsubstantiated) tales of sexual
degradation, disemboweling and myriad other horrific monster tales. All with no
chance for reply from the victims of the defamation.