The Rule of Law and China

Desmond Shum Photo: Jonty Davies

Red Roulette by Desmond Shum provides a powerful story of what happens in a nation that is not governed by the Rule of Law. In Canada and other Western democracies citizens and governments must abide by constitutions and statutes and the interpretations by the courts of a country. In Communist China there is only the pretence of the Rule of Law. It is the Communist Party currently dominated by its General Secretary, Xi Jinping, which decides what is the law of the nation. 

The Rule of Law can be an abstract principle. I find examples best illustrate the application of principles. Shum provides examples of how it is the Party, rather than the Rule of Law, which controls China.

In Canada statutes are carefully drafted to be as precise as possible so that they can be clearly understood and consistently interpreted. Canadians, with the aid of lawyers and judges, can be confident that they can rely on the provisions of statutes being applied by the courts.

In China, Shum explains that statutes have a lot of “gray” in them which makes it impossible for the Chinese people to know how the laws, especially in business, will be applied.

There is no independent judiciary to provide a check on the Party.

Even worse, when new laws are passed they are generally “retrospective” rather than “prospective”. In Canada it is the reverse. The problem with “retrospective” laws is that people, in particular, businessmen make decisions based on the law at the time of a decision. 

Even if laws are not changed, the Party in China has the power to require private companies to share or give up ownership of ventures to state owned entities.

If laws are subsequently changed to negatively impact existing business decisions or the Party can involve itself in successful companies it is hard to convince businesses to invest in such an arbitrary country.

With the law so “flexible” in China it is essential for business people to have good and close relationships with the “red aristocracy”, high ranking members of the Party and their families, so that laws are not changed to their detriment and interpretation of “gray” laws on corruption are not applied to them negatively.

In Red Roulette Shum and his wife, Whitney, cultivated a close relationship with Auntie Zhang, the wife of Wen who became the Premier of China. Establishing and maintaining such relationships inevitably involves payments or advantageous business opportunities.

Under the Rule of Law statutes apply to all citizens. I acknowledge there is some discretion in Canada but I have confidence no class of Canadians is exempted from the law.

In Communist China the “princelings”, the families of high ranking Party officials, do not face the same consequences as common folk. Shum describes how Li Peiying, a non-princeling, was convicted of corruption and executed by a bullet to the back of the head but nothing happened to a princeling participating in another corrupt venture at the same time..

Shum stated “the courts functioned as a tool of Party control”.

So far the Communist Party of China has allowed enough economic opportunity for the non-princelings that the economy can flourish and resentment towards the princelings is muted.

When there is no Rule of Law with regard to enforcement of criminal law, especially corruption statutes, everyone lives with an element of fear. Once again, connections with the elite can reduce the fear but never eliminate the anxiety.

Whitney used her connections to prosper, probably to the status of billionaire, and vowed not to make dirty business deals.

However, when unwanted public attention was brought upon the wealth of the Wen family by the New York Times and the Party negatively reacted it was Whitney not Auntie Zhang who was sacrificed.

With regard to criminal charges under the Rule of Law you are entitled to know the charges and have a trial.

Where there is no Rule of Law you can simply be “disappeared” as Whitney was taken from her office in 2017.

Chinese laws requiring the police holding someone to release or formally arrest the suspect are circumvented by shuanggui which:

…. allows investigators to hold people suspected of violating Party regulations. But shuanggui is not limited by any law. Technically, detentions can last forever.”

If a billionaire can be “disappeared” ordinary citizens live at constant risk.

Will the system change?

In 1215 English Barons met with King John at Runnymede and compelled him to sign the Magna Carta which significantly limited the power of the King. 

Among the provisions, as set out in an article on the LawNow website, were:

Clause 39 of the document provided that “no free man” (at the time, this mainly meant the barons) could be imprisoned, lose his possessions or be “deprived of his standing in any way … except by the lawful judgment of his equals or by the law of the land”.

Its concluding phrase – that no one could be punished or penalized except “… by the law of the land” – is perhaps the most significant of all, both in relation to criminal law and indeed, to our entire system of governance. This concept describes the Rule of Law, which underlies our form of democracy and law: the government, at whatever level and through whatever agency, may only act against a citizen where the law gives it authority to do so. Most important for criminal law, these words meant the state could only imprison or otherwise punish individuals where properly enacted legal provisions say this is possible. Arbitrary and illegal detention and imprisonment would not be tolerated any longer; citizens were no longer subject to being locked up simply because the king or queen took a disliking to their words or actions.

Other provisions established jury trials, that judges be qualified and the requirement that evidence be produced at trials.

Magna Carta was effectively the start of the Rule of Law in England. While the Charter was subsequently challenged the absolute power of the monarchy was at an end.

I think the “princelings” will some day compel the General Secretary of the Communist Party to share power and recognize property and personal rights.

I do not see the Rule of Law coming to China in the near future.

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Shum, Desmond - (2026) - Red Roulette