For Chinese translation, click here. Many thanks to Chen-Yu Chan for the translation.

Many factors have contributed to the ongoing protests in Hong Kong and last year’s Sunflower Movement in Taiwan. Economic inequality, widely disparate bargaining power between the PRC government and civic groups in HK and Taiwan, and perceived secrecy by government and economic elites in these places in their dealings with Beijing have all coalesced into the discontent on the streets. But one fundamental factor leading to frustration and misunderstanding on all sides is a difference in understanding of the idea of rule of law between the mainland and Hong Kong and Taiwan.

In the mainland, with its Marxist-Leninist and Mao Zedong Thought legal tradition, “rule of law” is conceived from a socialist point of view, and currently, there is a movement toward more of what appears to be “thin” rule of law. This means that the text of the law is important and is to be implemented effectively and fairly, but there is not as much emphasis on underlying rights or democratic processes. Implementation of thin rule of law can be seen in Chinese history at least as far back as Shang Yang and the Legalist school of thought during the Qin State in the 300s B.C.. Today in China, the government of Xi Jinping is certainly seeking to implement and improve thin rule of law in the country. When Chinese officials speak of rule of law, including at the upcoming Communist Party Plenum on October 20, it is almost always a “thin” version in which the government organs put out and, hopefully fairly, enforce laws, and citizens obey.

Xi Jinping probably sees China’s greatest rule of law challenges to be blatant instances of corruption and issues with professionalism in the judiciary, as many Chinese judges, especially in more outlying regions, are still former military or government officers with little formal legal training. Many Chinese citizens fervently support this push, because they have personally seen and suffered the consequences of bribery as well as arbitrary judicial and political enforcement of laws. And looking outwardly from the mainland, when this thin view of rule of law is applied to events in Hong Kong, Chinese leaders and pro-CCP netizens are quick to quote and repeat provisions of Hong Kong’s Basic Law and legalistically interpret the outlined government procedures to choose the chief executive (“one person, one vote” is “universal suffrage”), as well as emphasize laws and regulations that prohibit protesters from taking to public spaces or interrupting daily functioning of society. The protesters are simply lawbreakers under this thin rule of law conception.

However, many Hong Kong residents and especially many Taiwanese have a different, “thick” rule of law ideal. Deep citizen input into the content of laws, in addition to unbiased enforcement, is an essential component of thick rule of law. Many in these two regions look skeptically at the Chinese Communist Party’s rule of law promises, and assume that the relevant authorities are promulgating and enforcing their laws and regulations mainly as a way to further powerful commercial interests and limit rights of ordinary citizens. (Ironically, Karl Marx himself argued law has often been a tool of the powerful ruling classes to further their interests at others’ expense.)

Under this thick rule of law view, if Beijing yes-men have the de facto right to choose all three candidates regardless of local people’s desires, then “one person, one vote” actually does not represent universal suffrage in Hong Kong.

Thin rule of law can be criticized by some as not exactly rule of law, but rather rule by law. This disagreement about whether following procedures or the ways in which said procedures are established should be more meaningful, as well as the aggressive law enforcement tactics by police, appear to be the main reasons HK protestors have been so united against CY Leung in Hong Kong.

A second “thick or thin” rule of law challenge in regard to China, Hong Kong, and most notably Taiwan is the relationship between the Chinese Communist Party and the laws of the country. Some Chinese scholars and officials may argue that China does have “thick” rule of law (or possibly “rule of law with Chinese characteristics”), as the Party represents the interests of the people. One of former CCP leader Jiang Zemin’s “Three Represents” portrays the Party as representing the people more or less explicitly. It is in some ways beside the point whether ordinary Chinese believe that their interests are fairly and fully represented by the Party and its accompanying National People’s Congress and other government organs; accepting the Party’s representation in the mainland is not optional, and the Party maintains the force and ability to implement its will. But Hong Kong and Taiwan residents, having been more exposed to other styles of government (Hong Kong mainly through its free media and Taiwan via what some would call its “Western-style” democracy) are less inclined to see the Chinese Communist Party as representing their interests and satisfying a desire for thick rule of law.

To reiterate, the main complaints of many Hong Kong protesters are not that China did not follow to the letter the technically-outlined relationship between the National People’s Congress, Hong Kong’s local government, and the stipulations of the Basic Law; but rather that those governments and laws have been established in ways that does not take into account ordinary Hong Kong people’s interests, and therefore are believed to be illegitimate. Protest, then, could be regarded in line with Thoreau’s idea of “Civil Disobedience” or Martin Luther King or Mohandas Gandhi’s conceptions of peaceful unwillingness to go along with laws perceived as unjust. This is a deep, thick rule of law ideal, where without meaningful citizen input, ordinary civic regulations about street protests could legitimately be violated in pursuit of a higher interest. And one could see why a Chinese government led by Xi Jinping, which sees itself as locked in an internal struggle with corrupt officials just to try to push through thin rule of law on the mainland so that egregious miscarriages of written law can be eliminated and economic reforms implemented, would be so wary of potential chaos stemming from protestors challenging the established order. Messy protests, for reasons dating back in Chinese history (Boxer Rebellion, etc.) and also notably under the CCP (Tiananmen Square in 1989 or even the Cultural Revolution), remain anathema to the Party.

The CCP regards itself as pursuing goals in the “fundamental interests of the overwhelming majority” of the Chinese population. (This is a more specific summary of the Jiang Zemin “Represent” described above). The challenge in the 21st century is that, especially in its regions where people’s interests there may not neatly align with those of the “majority” population throughout the rest of the country (Hong Kong, Tibet, Xinjiang, and, were it absorbed under CCP control, Taiwan, would all be such regions), other ideas like individual rights, ethnic identity, or religious beliefs, rather than obedience to Party policy, may hold more sway. And no matter whether the Party implements its policies through its National People’s Congress and calls them “law” or not, to many protesters and citizens who do not feel genuine voice within the system, the authority may still seem illegitimate, even if a distinction between “law” and policy may be quite important to many Chinese law professors and those pushing the idea of thin Chinese rule of law.

And lastly, it must be noted that the CCP has shown a consistent willingness (even during its recent focus on rule of law) to retain the ability to intervene in its legal system whenever its core interests are threatened, including through its political and legal committees in court decisions. Recent strict regulation of journalism, news media, and the Internet on the mainland are also examples of interference (or, framed more positively, active involvement) by the Party in rule of law issues, all of which Hong Kong residents would consider as violations of their rights and a impediment of what has made Hong Kong economically prosperous and a functioning rule-of-law society. But in the mainland Chinese conception, and this rings just as true under Xi Jinping as it ever has, the ultimate arbiter of which core interests must be preserved at any cost remains the Chinese Communist Party, a decision which has led to much of the recent pushback in Hong Kong and Taiwan.

(Feature photo of protester from Hong Kong, by Dan Garret)

 

About Charles Wharton

Charles Wharton is a Visiting Assistant Professor of Law at National Taiwan University. He graduated from Harvard Law School with a JD in 2012. Prior to his appointment in Taiwan, he spent three years on the Chinese mainland teaching Law and English at the university level and researching civil society, with a specific focus on disability rights and advocacy.