Chris Devonshire-Ellis: Chinese Rule of Law Rests on Protecting the Authority of the State

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Op-Ed Commentary: Chris Devonshire-Ellis

Mar. 31 – With news that melamine milk parental activist Zhao Lianhai is facing trial in Beijing on charges of “provoking quarrels and making trouble,” observers must look beyond the rhetoric when it comes to matters of Chinese rule of law to understand the implications. Zhao, who was arrested several months ago, was one of a number of parents whose children had suffered from drinking milk laced with melamine powder. This caused the growth of kidney stones in some children – including Zhao’s son – and led to the death of six babies.

Following the incident, Zhao provided advocacy work on behalf of other affected parents when the scandal surfaced in 2008. Zhao was taken into custody on November 13, 2009 and has not been seen by his own family since. Meanwhile, the charges of “provoking quarrels and making trouble” carry a maximum jail term of five years. His advocacy work involved submitting claims for affected parents (the state has given compensation of RMB2,000 to each affected child who survived) with over 300,000 babies and children affected.

Appearing in court yesterday, Zhao’s family yesterday was forbidden to see him, even in court, and was forcibly turned away. In Zhao’s defense, he apparently pleaded not guilty and stated “if reporting to the police and revealing a crime becomes a crime itself, then we are living in a dangerous society.”

On many levels, the entire apprehension of Zhao seems wrong, let alone any prosecution of him. On one level he was just carrying out his duty as a concerned, frightened and angry parent – trying to protect his family – and to ensure others like him receive a fair amount of compensation and to ensure punishments are carried out against those who committed the crime. The last is important as it would ensure the likelihood of such acts diminishes. Punish the wrongdoers sufficiently and it will make others think twice about committing such atrocities. It sounds fair enough.

However, China plays to a different concept, with greater subtleties and nuances than we are used to in the West. Here, as a one party state, the Communist Party is highly sensitive to criticism; especially anything that can challenge its ruling authority. Knowing full well the power of an entire nation of angry rural Chinese, the Communist Party came to power in China on the back of a civil war and a revolution that killed and displaced millions. Here, China’s concept of rule of law radically differs from that in the West. The first rule of law is that the authority of the Communist Party has to be upheld above all else. All other laws are secondary to that concept. That rule of law was passed only after a bloody revolution that brought an entire country to its knees. On that basis, it too sounds fair enough. Denying that China has a rule of law is just silly, clearly it does, and there are historical and political reasons why China’s rule of law places the authority of the Communist Party at its apex. The implication, often not grasped by the West, is that if the Communist Party was not in power, then what is the viable alternative? The Communist Party’s answer would be a descent into chaos, and that only their authority and political beliefs are correct. On the face of it, and the growth of the nation over the past 25 years, who can realistically argue against that?

In Zhao’s case, the Party perspective will be that he became dangerous in inciting anti-government feelings. His “crime” has not been to form a pressure group to press for more answers and compensation, his crime is viewed as being subversive and questioning the Party’s authority. While trying to uphold peace and social stability, the Chinese government feels they are doing the right thing in suppressing any activism. If allowed to ferment, fester and develop, the society in question can become out of control, and create trouble, burning down buildings, resorting to mob violence, even murder. It happens, and rather more frequently than is reported.

While incarcerating Zhao, the Party has removed from society a man who was capable of inciting unrest. While his goals are admirable, that remains a line one cannot cross in China. Rule of law then, when it comes to understanding the People’s Republic of China, has to look at how the rule of law is applied – and fairly or not – depending upon the ability or likelihood of an individual such as Zhao to create trouble. In questioning the authority of the state, Zhao crossed China’s rule of law. The Party views his incarceration as upholding the common good, irrespective of the background circumstances.

The question over the status of Chinese rule of law then rests in who possesses the greater moral authority: the people as individuals, or the Party as keepers of the common good?

Chris Devonshire-Ellis is the principal and founding partner of Dezan Shira & Associates, establishing the firm’s China practice in 1992. The firm now has 10 offices in China. For advice over China strategy, trade, investment, legal and tax matters please contact the firm at info@dezshira.com. The firm’s brochure may be downloaded here. Chris also contributes to India Briefing , Vietnam Briefing , Asia Briefing and 2point6billion