The extent of the country, its huge population, special traditions of administration and the stage of development, they all have an impact on the legal reality. But the greatest influence on legal matters in China comes from the political system.

In contrast to India or other large states like the USA or Brazil, the People´s Republic of China is ruled by only one party, by the Communist Party of China. If the government of such a state claims to have achieved the rule of law in all aspects of China´s changing society, it is worthy to check this allegation thoroughly.

Before the CCP advanced to power it didn´t care about legal matters. Therefore millions of Chinese were killed. After the so-called “Liberation” in 1949 till 1976 the death toll amounted nearly 80 millions. Without a legal framework the slogans of Chairman Mao, the orders of any party-bigmouth and the fists of the mobsters of the Red Guardians ruled and ruined the country.

The reconstruction of a legal system belongs to the transition of the state of maoist period to contemporary China. Like the subjects in the dynastic centuries and the citizens of the Republic of China all the Chinese people should have the chance to know their rights and duties. In comparison to the chaotic years full of violence under Mao Zedong´s despotic rule, this legal development might appears to be progressive, but can this legal situation really be called the “rule of law”?

Today´s China has legal structures and institutions. Thousands of officers are well educated after a long training on the job, and judges hold a university degree. China´s constitution clearly regulates the state structures, respects the human rights and accepts the right of property. The Criminal Law and The Criminal Procedure Law forbid torture and unlawful detentions by the threat of severe punishment. In international law China is legally bound to several conventions and covenants protecting the free trade, the human rights, the environment and so on. At the first glance those facts seem to be an indication for the rule of law.

Ladies and Gentlemen, those seem to be, but aren´t. Every level of the administration or jurisdiction of the nation, the provinces, the autonomous regions, the cities, districts, townships and villages is influenced by the CCP. The party occupies the army, several secret services, the police and the prosecutor´s office. The People´s Congresses, legislative bodies of the Chinese State, the provinces, townships etc. can not act without the permission of the party, even if they are in session only one time a year. So it is very hard to control the People´s Courts and the People´s Governments by the People´s Congresses. Even if the members of the parliament want to control other state organs, it won´t be an earth-shattering act as long as they were chosen by the party or they were leading members of the CCP. Concerning the People´s Congresses I want to add that no one of the members or People´s Congresses above the level of townships and rural districts was elected by the people.

So it suggests itself for Chinese rulers to control a lot without being controlled by others. They fail to observe standards of domestic and international law, break business agreements and violate human rights. Very often human rights are infringed by the order of high-ranking politicians. For example lawyer Gao Zhisheng has been illegally detained, tortured and held incommunicado without any legal protection. How could this happen to a prominent and world famous critic without the approval of the government and the CCP-leadership?

Furthermore there are reports on rewards to officers who violated human rights of Christians, Falun Gong practitioners, Tibetans, Uyghurs or dissidents seriously by using cruel methods. This incriminating evidence points out the responsibility of the political leadership of the PRC and the CCP.

Chinas media report very often about ordinary citizens winning their lawsuit against the authorities, after the rights of the people have been infringed by the officers first. The Chinese propaganda
delivers such message about the rule of law in order to calm down the anger of the people, who have to tolerate the power abuse of the cadres in offices and in the leading party everyday and are ready for bloody conflicts. Does this fairy tale of the propaganda about the rule of law work?

Do most of the ordinary people believe in this propaganda anymore? I don´t think so, because the number of violent incidents caused by an abuse of power is rising.

Back to the three most sensitive matters of the Chinese law: the Constitution, the Criminal Law and the Criminal Procedure Law.

The preamble of the constitution defines, what is the leading force of the state, which is not an elected body. Please listen to the following verbatim: “In building socialism it is essential to rely on workers, peasants and intellectuals and to unite all forces that can be united. In the long years of revolution and construction, there has been formed under the leadership of the Communist Party of China a broad patriotic united front which is composed of the democratic parties and people's organizations and which embraces all socialist working people, all patriots who support socialism and all patriots who stand for the reunification of the motherland.”

Ladies and Gentlemen, as long as the Communist Party of China is the leading force of a socialist China, you can imagine what it means for the practise of power, when you read article 1 of the constitution: “The People's Republic of China is a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.

The socialist system is the basic system of the People's Republic of China. Disruption of the socialist state by any organization or individual is prohibited.”

What impact can the stipulation “All power in the People's Republic of China belongs to the people” of the constitutional article 2 have? If all the constitutional power comes from the working class based on the alliance of workers and peasants and lead by the CCP, there can be only little power remain for the ordinary people. Therefore nobody can expect too much in claiming to have several rights according to article 11, which regulates the right of private economy or the stipulation “The state respects and preserves human rights” in article 33. All the following articles about freedom of speech, press and assembly, the religious freedom or the freedom of person have to be subordinated under the current policy of the leading party.

According to article 247 of the Criminal Law judicial officers, who extort a confession from criminal suspects or defendants as well as the testimony of witnesses by torture, will be punished. Officers, who are in charge of the penal system and act like that, shall be sentenced in the same way.

The Chinese legislation also prohibited torture in the Criminal Procedure Law. Besides, China is a signatory state of the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” since December 1986. The convention was ratified by China in October 1988. However accepting it, that doesn´t mean to allow transparency on using torture. The only acceptable compromise on this matter for China´s leadership was to have two reservations upon signature. One is that China didn´t recognize the competence of the International Committee against Torture as provided for in article 20 of the convention. The second was the reservation that China didn´t consider itself bound to paragraph 1 of article 30 of the convention. The latter means that China won´t refer disputes with other states to the International Court of Justice.

The essence of such a complicated legal construction between the domestic criminal law and the international law is that there is a lack of control on Chinese offices. One well-known example is the visit of the special rapporteur on torture of the United Nations, Mr. Manfred Novack, in China. Although he has been surprisingly invited by China first, Chinese authorities hindered him during his stay.

Suspects and defendants suffer under limited rights. The rule of double jeopardy, which forbids a second punishment for one specific crime, is not a matter of the Chinese Criminal Law. The principles “Nullum crimen sine lege” (No crime without law) and “Nulla poena sine lege” (No punishment without law), which prohibit ex post facto laws, cannot protect Chinese citizens.

The persecution of Falun Gong, for instance, violated all those legal principles. In a state, whose leadership influences and controls the legislative organs as well as the judiciary; violations of rights, especially human rights, are often carried out under the permission of the state organs themselves. Therefore the state must be held responsible for the above-stated crimes. For that reason the People´s Republic of China can´t be regarded as an accountable partner, despite its political force and economic power.

The rules in China are made by a small number of political leaders within the CCP-apparatus and legal remedies against the abuse of their power don´t exist. So we cannot find the rule of law. One result is the increasing number of demonstrations, protests and violent struggles of citizens against armed policemen. The official propaganda about the rule of law, about good governance and a harmonic society becomes inefficient. While it is impossible for ordinary people to change their situation, they regard the rule of the CCP-leaders more and more as unfair and illegitimate. In the view of those people Chinese law is just a tool of a cynical, corruptive and cruel oligarchy. Instead of enjoying the rule of law Chinese people are confronted with a dictatorship ruling by law, by the law of an unfair system since many decades.