The Rule of Law in China – Interview with Cheng Li

Cheng Li is Research Director at the John L. Thornton China Center at the Brookings Institution, and a director of the National Committee on U.S.-China Relations. Focusing on the transformation of political leaders, generational change and technological development, Dr. Li has advised a wide range of government, business and non-profit organizations on working in China. The Consul is honored to have Dr. Li share his opinions the rule of law and constitutionalism in China. This is one of the three serial interviews with Brookings experts that the Consul conducted during the summer.

The Interview was conducted in the summer before the trial of Bo Xilai.

The Consul: It was announced yesterday that former Chongqing Party Chief Bo Xilai will stand “open trial” on Thursday for the charges of bribery, embezzlement and abuse of power. How do you think about this new announcement?

Li: Chinese society is so divided on Bo Xilai, because some people still treat him as a hero, or someone who is unfairly treated, or even deny his corruption. But some people think that he’s a Hitler. He’s hypocritical. Even the intellectuals are divided by the so called “new left” and liberal intellectuals, particularly those who emphasize the rule of law. The leadership has different opinions on how to trial him and what kind of punishment he deserves. There is a tendency trying to reduce Bo Xilai’s crimes to concentrate on corruption and bribery. But that brought several issues. First, He is less corruptive compared to many other people. Secondly, he’s famous for being anti-corruption(打黑). Thirdly, this case is not about corruption. It’s about murder, deception, defection… all kind of things that are more interesting than corruption.

The Consul: there are also a lot of arguments that he’s just using it as a tool in the political game. He ran a huge campaign about anti-corruption, but we can see from Li Zhuang(李庄)’s case and many other stories that it’s not necessarily the case. He seems to just use it to fight for his position in the Poliburo. Do you think that’s widely recognized? 

Li: That’s a good question. We do not have reliable information, because we cannot do a survey. What we heard is anecdotal, but social media is not reliable. However, it’s reasonable to assume that certainly some people like him for various reason. Some people think he’s unfairly treated. Some people think he’s charismatic and fun to see. Some people think he might be a bad guy but at least can get things done. Some people just want to use him to undermine current stability. To answer your question, it is fair to say that at least in certain sectors in the Chinese society, certain intellectuals are sympathetic with him, or wants to use him for their different agenda, or use him to express the dissatisfaction of the current situation.

The Consul: I did a quick search of “judicial independence” on weibo(微博) earlier, and there is a huge divide in opinions. Some people categorize judicial independence, along with constitutionalism, privatization and democracy as the invasion of western ideology. This presents a prominent social discourse to reject liberalism in the name of nationalism. How do you see the impact of such discourse and where do they come from?

Li: It comes from the establishment of the political leadership. They are scared that if they really go to constitutionalism, the power of the party will be severely damaged. That will leave the door open for all kind of changes. First, the party will lose control over military, over media, over the personnel. Eventually, it’s a fundamental move towards more open, more accountable, more rule of law society. This is what the conservatives do not want to see.

However, as we see in the western experience, constitutionalism and the rule of law will not only protect the poor people, but also protect the elites. But these elites are so scared that they don’t even want to test that scenario. They understand that this is the right thing to do, but they are scared of the consequences if they open it, so they just try to resist. This is so ironic that they use western conspiracy theory and talk about the uniqueness of Chinese experience. If we want uniqueness, you don’t need to talk about rule of law or democracy. You can just emphasize that the Communist Party is the best regime. Then just go with the North Korean style. That’s against the trend. Sun Yat-sen used to say that you cannot resist the global trend. It’s very ironic that after 100 years, China is still in that stage.

No one argues that China needs to adopt the western style. No one says all the legal systems will be the same. But there are some fundamental things that make the society a mature society. Fundamental things should be similar, but the style, the format, depends on historical circumstance. That’s why there’s Indian democracy, British democracy, Japanese democracy. But what makes these democracy similar are the same things. We do not expect China to be completely identical with someone else.

The Consul: As Mr. John Thornton mentioned in his foreword to the book In the Name of Justice, the rule of law is essential for China’s economic development and stock market potential. Do you think this push for China to join the international community is a result of the economic development? 

Li: Yes, in this specific case. In some other cases, it’s driven by ethnic tensions, or identity crisis. For example, Taiwanese democracy is driven by the search of its own identity after 1980s and kicked out of the UN. It derives from a sense to find the new identity, so democracy became an appealing thing. But in Chinese case, the driving force early on is economic development. When you have the middle class, new social media and legal professionals start to emerge and such integration with the outside world, you almost for sure will move to that direction. You cannot separate economics from politics, no matter how hard you argue. But there should also be a process. It’s not a day event. This is what we called mature democracy or the transition of democracy.

The Consul: You mentioned earlier that the fundamental values are the same but the format might be different.  If we assume that the party does have the intention to move to judicial independence at some point. Realistically speaking, what kind of obstacles will they face if they choose such a top-down approach?

Li: I think still three things: election, media supervision, and, most fundamentally, the rule of law. In China’s case, first, you need to improve the constitution. Secondly, even current constitution, even with some flaws, should be obeyed, should be superior to anything else.

In 1989 Tiananmen Square incident, I was sympathetic with the student movement, but I did not support it. I didn’t think at that time China was ready for democracy, because the mature civil society did not exist: the middle class did not exist and the private sector was very weak. Only after 1989, China started to establish the private entrepreneurs and private firms. But now after 24 years, China already has a mature middle class and relatively growing civil society. China is ready for it.

More importantly, Chinese leadership starts to have factions or coalitions. That’s the cause for many political cases: Bo Xilai(薄熙来) and Liu Zhijun(刘志军) in 2013, Chen Liangyu(陈良宇) in 2006, and early on, Chen Xitong (陈希同) in 1995. Yes, Chinese leadership is a monopoly power, but that does not mean that Chinese leadership is a monolistic group. It has different leaders with different backgrounds. They naturally form some factions or coalitions. These factions can check and balance each other. I’m not saying that China should have a revolution. In fact, constitutionalism will prevent China from a revolution by having incremental change. The time is running short. China is in this critical moment. Ultimate result may be the same, but this way can save a lot of people’s life.

The Consul: some argue that the Chinese middle class is facing a lot of pressure and insecurity over their property and housing issue. How much space do you think the Chinese middle class have to participate in politics?

Li: Middle class is a big basket including three major groups: government officials, private sector and intellectuals. Within the basket, the levels of leadership also differ. Low level officials are very cynical about the current situation. Middle class is a huge consumption power – it’s already there. When I wrote my first book about China in 1997 about middle class, people rejected my book and said there was no such a thing. But now everyone acknowledges the existence of middle class of about three billion people. That makes China the largest middle class country. Currently government power favors large companies, and that makes middle class unhappy.

Most importantly, it’s a generational thing. With more students who studies in the U.S. and go back to China, there will be a critical mass to change China. They have experienced different political systems and know the problems of both. This confidence they gain will help them. Democracy is not a dangerous thing. This historical moment gives us a paradox of hope and fear and confidence to build a better society. That’s a message should be sent to the young generation of Chinese.

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More interviews with the China experts from the Brookings Institution:

Cross the Taiwan Strait – Interview with Richard Bush

North Korea: is there a way out? – Interview with Jonathan Pollack

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