As well as micromanaging the lives of 1.4 billion Chinese, Xi Jinping is becoming a prolific author. His latest book, with the catchy title, On Persistence in Comprehensively Governing the Country According to the Law, is a collection of speeches and writings between 2012 and November 2020 and was published in December. The previous one came out in November. Anyone in China who wants to get ahead, or just stay out of prison, reads them all but they are also required reading for foreigners who deal with China. Since the book is not yet available in English and not penned in scintillating prose, here’s a cheat sheet.
Xi conception of the rule of law bears no resemblance to its Western counterpart. In the West, it is one of the foundations of democracy. Although there are various interpretations of what it encapsulates, there are also common understandings; the acceptance that government operates under the law, that there are effective procedures to ensure it does, that courts are independent and impartial, and that natural justice and equality before the law are maintained. The rule of law is also normative. People follow laws because they believe them to be fair and are therefore morally bound to do so. Laws that are considered unjust by a majority of citizens are less likely to be observed.
The recognition that the law and legislation are different concepts was central to the development of the West. Legislation may be good or bad; just or unjust. As the West developed, the idea that there are laws by which legislation is assessed and judged also developed. For centuries, the idea of a ‘natural law’ filled this role. As Cicero said, law is ‘right reason in harmony with nature . . . there will not be one such law for Rome and another in Athens, one now and another in the future, but all peoples at all times will be embraced by a single and unchangeable law.’ More recently, formal constitutions and international declarations have prevailed. The rule of law is a critical component of political order. It limits the powers of the state. This is reflected in the Universal Declaration of Human Rights in which the preamble, written in 1948, recognises that ‘the inherent dignity’ and ‘the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’ It adds that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ René Cassin’s original draft included a right to resist tyranny and oppression, but this was eventually omitted by the UN Human Rights Commission in the hope that the peaceful resolution of grievances would be promoted. As Mary Ann Glendon writes, the declaration that human rights are universal ‘challenged the traditional view that the relation between a sovereign state and its own citizens was that nation’s exclusive business’.
Karl Marx opposed the rule of law, describing it as ‘a great and dangerous illusion’ that protected the economic standing of the bourgeoisie. He wanted to empower the proletariat to establish their own law — as determined and interpreted, of course, by the Communist Party. This was supported by Lenin, Stalin, Mao and now Xi.
Central to democracy is the insight that power corrupts. As James Madison wrote in The Federalist (no. 51), ‘The great security against a gradual concentration of several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of others’. This principle is completely rejected by Xi, who uses his concept of law to concentrate power in the hands of the CCP. In various speeches, he applies his principle to every person and institution involved with the law – from police and regulatory authorities to lawyers, judges and courts. Understanding Xi’s communist ideology is critical in the West. It explains his regime’s abuse of human rights, his willingness to ignore international arrangements, and his disregard for formal agreements. It is why China blatantly disregards its obligations as a member of the WTO and in free trade agreements.
Worse, Xi not only claims that the law should be subject to the Party, but that international law should be subject to interpretation by a CCP-led coalition of fellow travellers. Those who still believe that China is on a path to greater political freedom should take note of Xi’s remarks to a conference on the rule of law held in November, at which he said he wants his Marxist model to be applied universally. As early as 2014, Xi spoke of ‘constructing international playgrounds’ and ‘creating the rules’ for the games played in them. Unfortunately, he is not referring to sport. Couched in fancy references to ‘scientific socialism with Chinese characteristics’, Xi’s goal is global totalitarianism with his ideology spread in the West by Confucius Institutes and United Front operatives.
The immediate application of this ideology can be seen in Hong Kong. The principle of ‘one country, two systems’ is subject to the rule of law, insists Xi. Hence, the laws governing Hong Kong are subject to the requirements of the CCP. With the legislature neutered, increasingly, police, lawyers and judges must comply. Carrie Lam has declared that there is no separation of powers in Hong Kong. Even people as powerful as media proprietor, Jimmy Lai, have been arrested. In almost all cases, the so-called offences relate to political speech but under Xi’s ‘rule of law,’ Chinese people cannot use the law to challenge or criticise the decisions of the regime. No wonder, our media annoys him.
While the Hong Kong judiciary has generally held the line, Xi’s warnings are ominous. State media has already criticised some judges. The pressure is unlikely to abate. Will new judges withstand the regime’s pressure? The last line of defence is the 14 foreign judges who sit on the island’s Court of Final Appeal. One Australian, Jim Spigelman, resigned after the national security law was implemented. To stay or go is a difficult choice. Will their presence increasingly legitimise the communist regime’s blatant disregard for human rights and international norms; or are they the last line of defence against it?
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