Jottings from the Granite Studio

The New York Times reported today on comments made by China’s top law and order official, Luo Gan, published in the journal Seeking Truth:

“Enemy forces” are seeking to use China’s legal system to Westernize and divide the country, and the Communist Party must fend them off by maintaining its dominance over lawyers, judges and prosecutors, China’s top law and order official said in a detailed speech whose text was published Friday.

Politburo Standing Committee, said in an address…that judicial officials had the responsibility to “prevent infiltration that might threaten national security.”

Mr. Luo said that China is now part of the global community and that it must consider “international factors” when making judicial decisions. But he drew a sharp line between such interests and allowing greater leeway for lawyers, judges and prosecutors to make decisions independently as they do in the West.

“There is no question about where legal departments should stand,” Mr. Luo said. “The correct political stand is where the party stands.”

I can understand Luo Gan’s pickle. On one hand, one of the biggest challenges facing the central government is enforcement of existing statutes, especially those on the environment and those that, in theory at least, should curtail predatory behavior on the part of local officials and business interests. Accountability is the key and freeing up the judicial process to allow citizens to sue local officials and corporations might be a useful check on abuses of power and corruption. Of course, as Luo Gan know doubt feels, this could open up the court system to any number of complaints not just directed at local issues, but also targeting the party itself.

Mr. Luo said the courts should play a bigger role in defusing mass incidents of social unrest by “safeguarding justice and fairness.” That appeared to be a plea to resolve protest incidents through legal means rather than relying on police crackdowns.

But he echoed recent calls to punish the “tiny minority” of troublemakers who try to mobilize social discontent. And he dashed hopes that China is prepared to phase out its extrajudicial system of re-education through labor, which often singles out political activists who have not committed crimes.

The house legal scholar here at The Granite Studio, YJ, says that Luo Gan is an old guy who has lived through the GPCR and 1989 and whose sole interest is in preserving the CCP’s grip on power in order to prevent “chaos.” She feels that his thinking is too clouded by his experiences and his position. In this way, Luo reminds me of the old guard at the Qing court, led by Rong Lu and Cixi, who opposed the 1898 reforms of the Guangxu Emperor. The old guard had seen the ravages of the Taiping and Nian Rebellions and for them the primary concern was maintaining stability. For Cixi, this meant preserving the Manchu prerogatives of power. She wasn’t inherently anti-reform. Cixi favored those reforms meant to strengthen China, like arsenals, ships, and modern armies (like the very useful one under the command of Yuan Shikai that she used to lock up the Guangxu emperor) so long as these things were also in the service of enhancing the court’s power and prestige. The problem of course was that by the end of the 19th century, the situation had changed. China’s greatest threat lay both outside its borders as well as in the crumbling of her administrative infrastructure. Corruption, cronyism, and the forces of the global colonialism ate away at the Manchu throne like carpenter ants.

To combat these forces required reforms that went beyond what Cixi and court conservatives could endure: provincial assemblies, educational reforms, and a modern bureaucracy–reforms like those proposed by Kang Youwei and Liang Qichao in the name of the Guangxu emperor in 1898. That summer, Cixi was just not ready. But following the debacle of her support for the Boxers and the subsequent occupation of Beijing by the Allied Forces, Cixi and her court advisers embarked on an ambitious set of reforms remarkably like those proposed three years earlier. By then however it was too late and the dynasty lasted only 10 more years, outliving Cixi by a scant three. Cixi probably would not have been comforted to know that she had been right all along: the main forces of rebellion in 1911 all were the products of the reform era–the “New Army” units like the one in Wuchang which started the revolt and the Provincial Assemblies which effectively ended the Qing by one after another seceding from the empire when it was clear that the center would not hold.

The CCP faces a similar dilemma. Solving China’s gravest threats–corruption, pollution, economic inequality, predatory development patterns–requires the increased accountability of local, provincial and central officials. But to make officials accountable to stakeholders is dependent on the kinds of reforms that leaves the CCP vulnerable to attacks on its legitimacy and authority. A court in which a farmer can sue a corporation for damages due to a polluting factory is also one in which a farmer might try to sue the local CCP bigwig who approved the factory. A court that is free to prosecute the malfeasance of a mayor might be tempted to take on the venality of a governor. It is a slippery slope upon which the aging Mr. Luo fears to step. Luckily for Mr. Luo, like Cixi, he will not be around to see the effects of his stubbornness.

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Related articles:

The Case of Dai Haijing: The Judiciary and Collective Action (September 12, 2006)

Banging the Grievance Drum (October 26, 2006)

Rights Advocate Wins a Retrial (November 1, 2006)