[SCMP Column] Four amazing things I learned about China’s top leadership this week

April 16, 2016

Not in jest, I often say the clearest defining difference between the United States and China is that China is run by engineers, while the US is run by lawyers.

Engineers are pragmatic, and like to do “stuff” – in China’s case big dams, high speed rail systems, 15,000 toilets for tourists and the like. But lawyers….. well, lawyers are lawyers. More often than not, they get in the way of doing stuff. The US pays a price.
I was reminded of this critical US-China distinction during a mesmerizing and important presentation at the Foreign Correspondents’ Club (FCC) this week by Wang Zhenmin, one of China’s leading legal brains and now legal chief in the Mainland’s Liaison office in Hong Kong.

Wang’s FCC presentation was dutifully reported by the local media, and by a smattering of international media too, but it did not receive a fraction of the attention it deserved. Why so significant? First, Wang spoke on a range of critical sensitive issues with unquestionable direct authority from the very top of China’s government. Second he spoke at the FCC. There can be no clearer “lion’s den” for a top Chinese official to enter than this. Third, he spoke in eloquent English directly to a global, rather than a purely local, audience. Most important of all, and refreshingly, he did not mince words:
·         On the Lee Bo publishers issue, he said it was “a very unfortunate incident”, and that it would be very unfortunate if any such thing ever recurred. He then unequivocally confirmed that only the Hong Kong government and its agencies have authority to enforce the law inside Hong Kong. This was implicit in the 1984 Sino-British Joint Declaration and in the Basic Law, but was never spelled out in specific words. I think this is as near as we may ever get to a Beijing confession that someone messed up, and over-reached their authority, in the still-murky Lee Bo matter.
·         He came down clear and hard on China’s view that calls for Hong Kong sovereignty were in conflict with Hong Kong’s Basic Law “constitution”, and illegal because of the potential harm implicit in calling for de facto independence for Hong Kong. Some in Hong Kong may disagree with him, but at least he was clear.
·         Over the 66 years since Mao came to power, China has moved from a 30-year period of “Rule of Politics” under Mao, to a 30-year period of “Rule of Economics” under Deng, and now into a new period of “Rule of Law”, implicitly under Xi Jinping.
·         He talked frankly about the flagrant subordination of the law to politics during Mao’s time, about the awful inadequacy of the legal system, and about the challenge now being undertaken to eliminate party influence over judges and the courts, and to make the Party answerable to a constitution, and transparent legal principles. With a total of 300,000 legal professionals now trained and active in the Mainland, China might not quite have reached the legalistic heights set by the US (1.2 million practicing legal professionals), but Wang certainly suggested the country was on its way.

Of course, as the former dean of Qinghua University’s Law faculty, it is reasonable to raise an eyebrow and say “Wang would say that, wouldn’t he”. He is almost certainly talking his own profession’s book to depict the coming three decades in China as being defined by the “Rule of Law”, since I am sure Beijing has other strategic priorities that might equally well describe the aspirations of the coming three decades.

But the fact that he speaks with direct authority from the seniormost leadership in Beijing cannot be downplayed. This is without question an important component of the party and political reform effort currently under way in the Mainland, and an important priority for Xi and his team. If it is indeed true that efforts are underway to eliminate party leverage over legal decision-making across the country – in particular at the level of city Mayors – then this must surely mean that Xi is less the megalomaniac autocrat than some western commentators seem keen to depict. Wang talked of Beijing appointing judges nationwide, and of court funding to come from the Provincial Government – eliminating the financial power currently exerted by Mayors over local courts. These would be significant and encouraging changes.
If Wang gave cause for encouragement over efforts to bolster the rule of law in the Mainland, and to bolster Hong Kong’s legal autonomy as enshrined in the Basic Law, then it may be timely to provide Beijing with some important warnings. First China must try to preempt the US conundrum, where the very function of government seems so often to be held hostage to legal shenanigans.

For example, just look at the 2,300 page Dodd-Frank Act that became law in 2010 and was supposed to provide a new framework for regulating banks. This has to be poster-boy for self-serving legal craftsmanship. Behind the 2,300 page Act are 22,000 pages of regulatory content, and 390 separate new federal rules. Today, almost six years after enactment, just 247 of these rules have yet been finalized. And there have already been 139 pieces of legislation proposed to amend the act. Set against the US$10.3 billion that has been recovered for losers from the crash, lobbyists have spent at least US$3.25 billion trying to influence Congress on amending the Act. China without rule of law was without doubt a nightmare. But China with such legalistic overreach could be nightmarish too.

And a final thought. Rule of Law is all very well if access to the law is too costly for us ordinary mortals to afford. Here in Hong Kong, even a simple civil action in court will cost hundreds of thousands of dollars. For most Hong Kong people, legal recourse is out of the question simply because it is too costly. If Wang can suggest ways China can give access to legal protection without bankrupting us, he would do us a great service. Strength to his arm.
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