'We need the stability of laws now more than ever,' Joseph Stalin said at the height of his infamous manipulation of the Soviet legal system to purge millions of political enemies.
In his recent annual report on the work of the Standing Committee of the National People's Congress, Wu Bangguo, its leader, announced that China had established 'a socialist legal system with Chinese characteristics'. Wu, a prominent member of the Communist Party's Politburo, made it clear that the party will continue to prefer Mao to Montesquieu and reject the separation of powers and other Western-style institutions for placing government under law. His recitation of the scope and numbers of laws, regulations, interpretations and other norms that China has promulgated was designed to support his claim that there now exists 'a complete set of laws covering all areas of social relations'. Yet what kind of legal system has the party built?
Recent events have reignited debate on this critical question among foreign government experts, journalists, businesspeople, social scientists and lawyers. Moreover, their Chinese counterparts - and Chinese lawmakers, police, prosecutors, judges and ordinary citizens caught up in the momentous, complex changes under way - are engaged in similar analysis, albeit in necessarily more muted fashion.
Wu emphasised that, while the problem of having no laws to follow had been largely resolved, the problems of compliance and enforcement were now more pronounced. The one statement in Wu's report that even critics can surely endorse is: 'The vitality of the law is its implementation.' Yet, the ever-intensifying repression of petitioners, political activists, independent NGOs, internet bloggers, religious practitioners, those who seek to use the courts to alleviate a broad range of politically sensitive grievances, and the lawyers who help them, is being conducted contrary to good-faith application of even the existing limited legislative protections and, increasingly, totally outside the legal system. The impressive legal environment that has been created to promote domestic economic progress and foreign trade, technology transfer and investment continues to play a positive role in China's development. When it comes to political and civil rights, however, the gap between law and practice is growing dangerously.
'A socialist legal system with Chinese characteristics' does not adequately describe the situation. It would be more accurate to say 'a Chinese Communist political-legal system'. The system is undoubtedly Chinese, but so too is the very different legal system that has evolved in democratic Taiwan. The mainland system is clearly 'socialist' in that it continues in many ways to embrace the Soviet legal system that Mao Zedong imported and adapted to Chinese soil late in Stalin's reign.
People often overlook the continuing influence of the Soviet model in China long after the death of the USSR. The mainland Chinese legal system is still that of a 'party-state' run on Leninist principles. When, beginning in 1978, Deng Xiaoping revived the nation after the Cultural Revolution, liberalised the economy and opened China to the world, he essentially resurrected the Soviet legal model, both in terms of legislation and institutions applying the law.