Diana Fu is an assistant professor of Asian politics at the University of Toronto and author of Mobilizing Without the Masses. Emile Dirks is a doctoral candidate in political science at the University of Toronto. Sida Liu is an assistant professor of sociology and law at the University of Toronto and co-author of Criminal Defense in China.
When a Chinese court sentenced Canadian Robert Schellenberg to death on drug trafficking charges last week, the Canadian public was indignant. Here again was proof of China’s blatant disregard for human rights and due process. But China dismissed these foreign criticisms on legal grounds: When Justin Trudeau expressed concern about China’s “arbitrary” ruling, a Chinese foreign ministry spokesperson rebuked him for not respecting Chinese law.
Mr. Schellenberg’s death sentence was likely politically motivated and strategically timed: China understands the power of hostage diplomacy and is using it to pressure Canada into releasing Huawei executive Meng Wanzhou, who was arrested at the request of the United States regarding suspected violations of U.S. sanctions against Iran. The Schellenberg sentence should be condemned on procedural and human-rights grounds. But does this mean China is ruled by pure despotic power, unrestrained by law? Not exactly.
China practices the rule of law. But as with everything else, it is with Chinese characteristics. Since the death of Mao Zedong in 1976, the Chinese Communist Party has trumpeted governing by the law. From Jiang Zemin to Xi Jinping, every leader’s political ideology has been infused with references to “law-based governance.” This is a rational move: A highly functional judiciary means an orderly society, a top priority in a country of 1.4 billion people.
To achieve this, judicial reform has been key. Nowhere is reform more clearly reflected than in the death penalty. While China remains the world’s leading executioner, the number of executions carried out is believed to have plummeted from more than 10,000 a year in the early 2000s to a few thousand in the mid-2010s. The precise number is a state secret.
This dramatic drop is the result of legal reforms that have centralized judicial authority. By 2007, the Party had grown concerned that the number of death sentences was undermining the public’s faith in the legal system. As a result, the Supreme People’s Court now reviews all death sentences passed by lower courts. Death sentences are often commuted to life imprisonment. Through the grimly named “killing fewer, killing carefully” policy, the Party sought to demonstrate that its courts would deal harshly but soberly with the most serious offences.
But despite these reforms, judicial independence only exists on paper. The supremacy of the Party over the law is absolute. Every important court decision is subject to Party approval, including Mr. Schellenberg’s death sentence.
Chinese officials see true judicial independence as a Western plot to undermine one-party rule. But because the Party wants to send unequivocal signals to both international and domestic audiences, it will indulge pretenses that it is following the rule of law. By widely publicizing the Schellenberg trial, the government communicates to Canada and its allies that China views the Huawei arrest as an assault on core Chinese interests, while telling a domestic audience that China is ruled according to its own laws, and will not bow to Western pressures. As a recent editorial in the state-run Global Times declared, “The trial of Schellenberg shows China practicing its judicial sovereignty,” and it’s an argument that many Chinese find persuasive. Chinese online opinion on the trial has been scathing toward Canada, with one commentator sneering that “sentencing to death a Canadian drug trafficker protects the dignity of the law.”
Of course, the Chinese public does not speak with one voice. In promoting the rule of law, the Party has inadvertently given rise to its own critics: a burgeoning and vocal group of professional lawyers and legal scholars who take their trade seriously, and the Party at its word.
Some Chinese lawyers have publicly said that increasing Mr. Schellenberg’s sentence from 15 years in prison to death violates the Criminal Procedure Law’s prohibition against reformatio in peius, or change for the worse, in appeals cases. Others have remonstrated that such a short period between the court hearing and sentencing – barely one hour – is unusual in death-penalty cases. And prominent legal scholar He Weifang lamented on social media that if China’s judicial organs take part in the political farce of “treating the law like a toy,” this is a “dangerous and perilous situation.”
Such sobering words stand out against a sea of state propaganda. Will Beijing listen? Probably not. But dissenting voices from China’s own legal community are heartening signs in an otherwise dismal situation.
Canada and its allies should continue to support China’s liberal-minded legal community. Facing an agitated Chinese Goliath, Canada should listen to and amplify the voices of China’s own legal Davids.