Article reminds Beijing on need for rule of law

Wang Xiangwei
22 March 2010

Yu Keping, a 51-year-old theoretician, first shot to fame in early 2007 when his essay, “Democracy is a Good Thing”, was published in state media and picked up by the overseas media, particularly the Chinese-language media in Hong Kong.

Yu, a deputy director of the Central Compilation and Translation Bureau, an obscure party outfit responsible for translating the works of foreign and Chinese communist leaders, argued that democracy is the best political system for mankind.

The article and timing of its publication caused a brief but intense flurry of excitement among media commentators and scholars at home and overseas, with the party’s 17th congress later that year set to elect younger leaders to the top leadership amid growing calls for political reform.

Although the excitement waned as the leadership showed little sign of pursuing reform, the significance of Yu’s article should not be underestimated. He was described by overseas media as a close adviser to President Hu Jintao.

Since then, Yu’s public remarks have been scrutinised. Thus, it is interesting to note that his latest article, published in the Study Times last week, caused another round of murmurs among mainland scholars and in internet chat rooms.

In his article entitled, “To ensure ruling the country by law, ruling the party by law must come first”, Yu argued that the ruling Communist Party and particularly its leaders must learn and abide by laws, placing the state constitution and the party constitution above everything else, and resolutely do away with confusion over which is more important – party or law.

Political nuances aside, Yu’s latest article is apparently meant to provoke thought and debate, much like his first one.

The mainland has come a long way since the beginning of economic reforms and opening to the outside world in the early 1980s.

Nearly 30 years ago, Peng Zhen, the then chairman of the National People’s Congress and one of the party’s elders, reportedly uttered a famous quote when asked by an overseas reporter which was more important, the party or law. He apparently paused before saying he was not sure.

Since then, the leadership has repeatedly argued that the party must be subject to the state constitution and uphold the rule of law. But judging from Yu’s article, the party still has a long way to go before it becomes a fully law-abiding party.

There are several things that the leadership can do immediately to improve its legitimacy.

First, a law on parties should be introduced so that all parties or organisations can be properly registered. For the moment, neither the ruling Communist Party nor the eight dwarves – the so-called democratic parties under the direct control of the Communist Party – are legally registered. While the ruling party has shown no sign of relaxing its ban on formation of new parties, such a law could lay the foundation for future development.

Secondly, another law should be introduced to distinguish the assets controlled by the party and the state. After the People’s Republic was founded in 1949, the leadership decided to have the party turn over all of its assets to the state on the assumption that the ruling party operating its own businesses could lead to corruption and conflict of interest. But the truth of the matter is that the party controls all the state-owned enterprises, making it impossible to distinguish the party and government functions, a long-standing problem in its efforts to develop a modern market economy.

More importantly, the leadership should take steps to do away with the most glaring symbol that signals it is beyond the law – the Central Commission for Discipline Inspection, the party’s top anti-graft watchdog.

In the eyes of the leadership, the commission is the most powerful and effective weapon against corrupt officials, boasting sweeping powers to investigate and detain those suspected of corruption.

In theory, the commission, an arm of the Communist Party and under the direct control of its leadership, is empowered by the party constitution to investigate members for breaching discipline, hence its mellow-sounding title.

As most officials are party members, the commission’s main function is to investigate those suspected of breaching party discipline – a euphemism for corruption, before turning them over for criminal prosecution.

In reality, the commission’s power is unmatched. In the name of upholding party discipline, it can hold any party member suspected of wrongdoing for as long as it likes in a process called shuanggui. Usually, party members detained for questioning are put in a guesthouse guarded by armed police and are not allowed to have any contact with family members, let alone a lawyer. Many senior officials involved in complex corruption cases can be held as long as two or three years without going through any legal process. There have been occasional reports that officials have committed suicide during their detention.

More and more lawyers have argued that the commission’s way of doing things is against the law and its function should be turned over to a judicial body able to operate within the law.

But mainland leaders have repeatedly rejected the notion and have instead strengthened the commission’s power.


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