Canadian foreign aid meant to shore up the Chinese legal system was doomed from the start, says a Canadian lawyer who practiced in China. However, recent power struggles within the Chinese Communist Party may offer the prospect of change.
That aid, along with all other aid to China, will be cancelled as CIDA (Canadian International Development Agency) hacks $377 million from aid spending by 2015. The move comes as the Conservatives continue their disciplined return to balanced budgets but it also fulfills a long-standing wish among many Tories to dial back support for the communist regime.
Cutting aid for projects to improve the Chinese judicial system is long overdue according to lawyer Clive Ansley, who practiced in China for 15 years and is one of a handful of Canadian lawyers to face the Chinese court system. As long as the Chinese Communist Party (CCP) controls the courts—a fact CIDA and its partners often ignore—reform is impossible, he said.
“All that [CIDA’s projects] were doing is creating a false impression amongst people on this side of the ocean that China is serious about reforming the judicial system,” said Ansley.
As long as the regime appoints and fires judges at will, throws lawyers into prison for defending repressed groups, and maintains the Party’s dominance over the judiciary, reform is a farce, he said.
“It’s not rocket science. The entire legal system, including all judges, is totally under the control of the Party.”
Widespread abuses in China’s judicial system often turn courts into tools of repression by the CCP, with directives from the Party superseding the laws as they appear on paper.
The Chinese regime is the world’s leading executioner, and a massive re-education through labour system sees dissidents and prisoners of conscience suffer horrible conditions, often incarcerated for merely exercising basic freedoms.
Canada has spent close to a billion dollars on aid to China since 2000, with $571 million in multilateral spending and $426 million in bilateral aid. Spending spiked in 2008-2009 to $142.7 million after an 8.0 magnitude earthquake struck Sichuan Province and has since dropped sharply, with $34.2 million spent for 2011-2012.
The Chinese regime is the world’s leading executioner
With the announced cuts, one of the last projects CIDA will fund in China is the Canadian Bar Association’s (CBA) effort to improve legal aid services for marginalized groups, specifically ethnic minorities. CIDA will kick in a maximum of $10 million for the project.
Democratic governance efforts, like CBAs legal aid project, were a top priority for CIDA monies in China. A 2005 report from CIDA gives an overview of its governance efforts in China including programs to increase rule of law, democracy, and civil society. The report also details various reforms the Chinese regime has been enacting to bring itself closer to international norms.
But critics of the regime have long held that those reforms are little more than window dressing used to stave off criticism and bait optimists into hoping the CCP was willing to loosen its grip on power and subject itself to the rule of law or multi-party elections.
Elephant in the Room
CIDA and partners delivering programs in China with Canadian tax dollars rarely acknowledge the CCP. For example, the 2005 overview report does not mention the Party once.
That’s an incredible omission.
Canada has spent close to a billion dollars on aid to China since 2000
Ignoring the CCP’s role in Chinese governance isn’t easy. For every government office, major corporation, or other organization, there is an accompanying CCP structure—a controlling shadow ensuring those operations serve the Party’s interests.
In practical terms, that situation translates as having a Party secretary positioned behind virtually every notable figure, be it a CEO, mayor, or university chancellor.
Sometimes the government official is the same as the Party official, as is the case at the highest ranks. Current Chinese leader Xi Jinping heads the government as president and heads the CCP as general secretary. The same is often true of the heads of major state-owned enterprises such as CNOOC, where Wang Yilin, chair of CNOOC’s board of directors, is also party secretary for CNOOC’s Leading Party Group.
Some recipients of CIDA funding acknowledge the CCP’s control over the courts, but they are the exception in published reports.
The University of British Columbia’s International Centre for Criminal Law Reform (ICCLR) received CIDA money to work with the PRC’s Supreme People’s Procuratorate, which could be compared to the Supreme Court of Canada except that it is under the authority and control of the CCP.
Critics of the regime have long held that those reforms are little more than window dressing used to stave off criticism
In its 2008 report on that project, the ICCLR talks glowingly about Chinese judicial reforms but does not acknowledge the Party’s dominance over the courts. However, in an earlier 2002 collection of papers on the organizations China program, Dr. Vincent Yang notes:
“A fundamental difference between the Chinese procuratorial system and its Western counterparts is that the former is subject to the leadership of a political party, that is, the Chinese Communist Party.”
In an obtuse nod to the lack of an independent judiciary, Yang writes that Chinese law protects the courts from interference from “administrative organs, social associations and individuals,” but that provision does not apply to the CCP.
The CCP is the elephant in the room when it comes to any governance initiative because although it has the ultimate authority, it is untouchable and often ignored—a problem that can undermine the spirit of CIDA’s hopes for a reformed China.
The latter point is evidenced by the happenings currently playing out in a Toronto courtroom.
In the coming weeks, plaintiff Jin Rong will try to further her lawsuit against Bo Xilai, the disgraced former commerce minister known as one of the most ruthless allies of former Party head Jiang Zemin.
Bo was Jiang’s chosen successor to eventually head the Party and among the youngest of Jiang’s hardline clique of comrades behind the massive crackdown on Falun Gong launched in 1999. Ensuring an ally took his place as head of the CCP was Jiang’s best insurance his past crimes would not be used against him by his political opponents.
The only thing between Bo and losing that lawsuit is the All China Lawyers Association (ACLA), a group that bills itself as the equivalent of the Canadian Bar Association (CBA). The ACLA is arguing Bo has state immunity for his role in Jin’s imprisonment for practicing Falun Gong.
Coincidentally, the ACLA is a direct beneficiary of CIDA money, having asked the CBA to request CIDA funds to help the ACLA improve the capacity of its criminal law committees and lawyers.
Money Against Money
But while the CBA is an independent governing body of lawyers in Canada and operates at arm’s length from the government, the ACLA is the tool through which the CCP exercises control of China’s lawyers.
Yu Ning is the ACLA’s president and a party member, while Deng Jiaming is its secretary general. Together they’ve carried out a determined effort to repress lawyers that challenge the Party by measures that include revoking licenses.
Affidavits filed with the Ontario Superior Court hearing Jin’s case detail the ACLA’s role in repressing rule of law in China. The ACLA is controlled by the Justice Ministry and completely under Party control. The ACLA directs its branch associations on how to handle sensitive cases, like the prosecution of dissidents.
One affidavit is authored by Han Guangsheng, who defected to Canada in 2001. He was previously the deputy chief of Shenyang City Public Security Bureau (1982-1996) and held high-ranking positions until 2001 including Chief of Shenyang City Judicial Bureau, Honorary Chairman of Shenyang City Lawyers’ Association, Secretary General Chinese Communist Party Committee of Shenyang City Judicial Bureau, etc.
Han said the ACLA is a sixth finger of the CCP’s autocratic dictatorship, accompanied by a fistful of five major departments, namely the Public Security Bureau, Procuratorates, Courts, Ministry of Justice, and Ministry of National Security.
Han gave an insider’s experience of how the ACLA controls lawyers to carry out the kind of repression the CBA now hopes to counter in its current CIDA funded legal aid project.
But while Canada’s millions could do little in China, a new generation of leaders seems to be contemplating legal reforms as a way to out manoeuvre political enemies.
China has a constitution, but it is rarely referred to. Ansley says China’s entire legal system was largely an effort to assuage foreign investors who wanted an avenue to appeal abuses by corrupt officials or shady business partners. Having laws on paper also helps the regime deflect criticism from the international community.
But in recent days, new leader Xin Jinping and his allies have been dropping the “C” bomb—constitution—in a way that has some observers speculating the long-rumoured dissolution of Party control could be much closer than is commonly thought.
New premier Li Keqiang said in a March 17 press conference, “We will be loyal to the constitution.”
That innocuous line is a continent away from the normal pledge: “We will be loyal to the people.” Unlike those nebulous “people” and their possibly conflicting wishes, China’s constitution can be referenced and measured, and while it has been largely ignored beyond securing the CCP as the ultimate authority in China, some hope that could change.
Xi has also referred to the constitution in his speeches. But in a signal to how difficult any change could be, his constitution remarks were later scrubbed from the Chinese Internet, presumably by Jiang Zemin ally Liu Yunshan, who exercises control of the Ministry of Propaganda.
If talk about the constitution is more than lip service, it may mean at least one faction in the Party has begun to see rule-of-law as a way out of China’s prolific problems. Analysts with the Epoch Times suspect Xi’s faction is looking at legal reforms as a way to gain an edge on Jiang’s hardline faction.
The Epoch Times contacted CIDA, the CBA, and ICCLR for comment on this story. CIDA provided some funding numbers but none would speak to challenges inherent in legal reform in China.