Thank you very much.
I'd first like to thank the committee for offering me this opportunity to share a few thoughts with you on various issues of Canada's engagement in Asia. Today I will focus particularly on the absence of the rule of law in China and its declining attention in China.
When we look at the rule of law in China, I think we should first think about the indicators of how any fealty to the rule of law has declined significantly over the past few years. The place we want to start is to remember that when we as Canadians hear the term “the rule of law”, we conjure in our minds particular expectations about protection of citizens' rights, limitations on government action, and so on.
I would just remind everyone that this is absolutely not the rule of law that is established in China, where the regime is quite careful to use the term “the socialist rule of law”. Indeed, what is described in China as the rule of law is more likely or more in fact to be the rule by law; in other words, the use of formal rules, statutes, institutions, and so on to carry out policy. I think it's important to have a bit of that interpretive correction at the very beginning.
What I'd like to now do is focus on two examples, the first being the supremacy of party dominance by the Communist Party of China, an example of which is the repression of lawyers in China; and finally I will just comment on the recent constitutional amendment. Then I'll move on to implications for Canada and what to do.
Party dominance over the legal system in China has been well entrenched for the entirety of the PRC's existence, but in the post-1978, post-Mao period, it was entrenched in the constitution under the rubric of the so-called “four basic principles”, the most important of which was submission to party leadership.
We might think that something that was incorporated in the state constitution in 1982 would have somehow become diluted with age, but that is most assuredly not the case. Whenever there is discussion of the constitution in China, the four basic principles are brought out once again to remind all that the constitution and the legal system are subject to a governing principle of submission to party authority.
More recently we have seen a number of examples that have entrenched this perspective. In 2013, we saw the issuance by the party of what was called “document number 9”. Document number 9 attacked various activities considered unhealthy in China, including promoting western-style constitutional democracy, promoting civil society, promoting a free press. Document number 9 called for ideological leadership to resist western values and western ideas and incorporated the so-called “seven not-to-be-spoken-ofs”, the seven issues that were not to be talked about. They included freedom of the press, civil society, civil rights, and so on. Judicial independence is another.
As recently as 2013, then, there was an effort to make this ideological rigour clear. Then in 2014 came the fourth plenum of the 18th central committee of the Communist Party. It was called the “rule of law plenum”, but indeed, it just reaffirmed that law in China must adhere to the directives of the Chinese Communist Party.
We saw examples of this in 2015 when the politburo received reports on the work of party cells or party leadership groups within the courts, within the legislature, within the prosecutorial departments, and we saw an edict in May 2015 on establishing so-called “dang zu”—the party unit—in all non-governmental units. We thus see an expansion of party dominance and party control.
In 2016, China issued a white paper on judicial reform, and that white paper included a re-emphasis on the dominance of the party and the principle of submission to party rule, and it explicitly rejected the notion of judicial independence, preferring instead the term “impartiality”. Then most recently, this year—and there are probably many other examples, these being just the ones I'm sharing with you—there was the establishment of a national supervisory commission to oversee government and state-owned sectors.
This was essentially an extension of the Central commission for Discipline Inspection, which is a party discipline and anti-corruption mechanism, further across the government, including into judicial institutions. It was referred to as “turning the party's will into law”.
These are many examples of how law in China, despite the term “rule of law” and the deliberate attraction of expectations about what the rule of law means, is something quite different altogether. It really is submission to party rule.
A point in example of this is the repression of lawyers in China that has been going on vigorously since 2015. This is consistent with both the rules of the All China Lawyers Association that purportedly governs the behaviour of lawyers, which requires that lawyers support party leadership, and the PRC lawyer law, which also requires lawyers to uphold party leadership.
The criminal law and the criminal procedure law were recently amended to prohibit and provide punishments for provision of so-called false evidence. This was intended to discourage use by lawyers of exculpatory evidence, again under the direction of the party.
Then, what they call the “709” crackdown—so labelled for July 9, 2015—which has been going on since, is active repression, detention, and punishment of lawyers for taking positions that local party officials didn't like. Hundreds have been detained. There have been reports of torture, of forced medication, denial of access to family and legal counsel, the imposition of residential surveillance over homes and families, persecution of family members, and so on. This has been going on vigorously for the past several years. Most of these lawyers are not taking on particularly sensitive national government corruption or malfeasance issues, but rather pursing the rights of marginalized people, such as labour rights, environment, women's rights, pensions, and so on. This is yet another example of how law and legal institutions in China are being bent to the will of the party.
Perhaps the most recent example and the one that most people are very familiar with is the amendment of the constitution to remove term limits on Xi Jinping's rule. Here was another example of the party's use of a legal form to further its own goals. The result is that the constitution provides no meaningful restraint on party behaviour. This rather epitomizes the absence of the rule of law in China.
When I think about the implications of this for Canada, it's important to note that this is not simply a domestic matter. It affects China's treaty compliance. China's respect for its own law covers over to its respect for international treaties on such matters as human rights, ethnic minorities, and trade. The absence of the rule of law in China, then, affects all aspects of Canada's relations with China.
Global governance, wherever we pursue collaboration on climate matters, conflict resolution, or development, still depends on China's commitment to the rule of law in treaty compliance. Canada-China legal co-operation on things such as enforcement of arbitral awards, extradition, and so on still depend on China's commitments with regard to its own legal behaviour, whether on death penalty procedures or other criminal procedures. Here again, the absence of the rule of law impinges upon that.
Another example is cultural and educational exchanges. University links, for example, or cultural links and performances and so on, depend similarly on adherence to the rule of law, which we have not seen in China, seeing rather adherence to party fealty—party whim, if you will.
Finally, trade relations are absolutely affected. We've seen in the last eight months or so refusal to accept notions of progressive trade policy; that was last December. We've seen more recently, in April, the absolute rejection of labour provisions in a free trade agreement. We see these further examples in the international realm of China's approach to law as being nothing more than an instrument for carrying out party purposes. This tells you how the regime will consider legal standards with regard to institutions and personnel in its relations with Canada. It's not simply a domestic issue.
I'd like to take half a minute to ask what we do about this. It's a difficult situation. I think what I presented this morning is by no means parochial or one-sided; I think it's pretty well established and documented by me and by many other people.
Non-engagement is just not an option. China is China. China is important; its economy is huge; its reach is significant.
I would counsel what I counsel clients who are working in China, which is first, patience: patience on concluding transactions and treaties. Consider whose interest is being served and why the rush. Be patient to allow for situations in China to evolve and perhaps improve.
Then, preparation: know the rules. For example, when Xi Jingping, at the Boao conference not long ago, talked about protecting the legal rights of foreign investors, we may be comforted by that reference to legal rights but it's incumbent on us to understand what it actually means in a Chinese context, and it means something very different from what it means in ours. It means whatever the party wants it to mean.
Then finally is perseverance. Things change, things develop, things can get better, things can get worse, and so on, and so it's to persevere with our commitment to engagement with China but subject it to what I would call consistent and polite firmness in our engagement—purposeful ambiguity, finessing of issues, and so on.
I would say, then, that engaging with China, which has largely abandoned a rule of law as that concept is understood by us in the West, requires patience, preparation, and perseverance, and I hope that those will allow us to engage with this very difficult party on the other side of the Pacific.
Thank you very much.