AUSTRALIA is now on the receiving end of one of the great ironies of recent Chinese history. The Chinese regime is desperate to stay in power and to do that it needs to keep control and avoid unrest, turbulence and uncertainty.
After the disruptive and violent Cultural Revolution and with the Gang of Four in jail, China turned to economic reform in the late 1970s. The masses had to have economic improvement to avoid turbulence.
Chinese leaders thought they could achieve this with the Communist Party remaining in power. Apart from a close run thing with Tiananmen Square in 1989, that has happened. But it is again wearing thin.
As with the Soviet Union it is not so much a struggle between capitalism and communism, but a struggle between the rule of law and the rule of men – a struggle between the rule of laws made by freely elected representatives and the rule of men in power.
In the past 25 years, China has passed a lot of laws respecting property rights and human rights and even rights to sue local governments. The trouble is those laws have often been ignored and the judiciary often corrupt, incompetent or untrained – too many ex-cops and security men on the bench. Judges are appointed by the Communist Party, so there is no independence and therefore no confidence in the judiciary. Local officials routinely refuse to accept documents to begin legal processes and there is no redress.
Sure, there has been quite an improvement since the grim days of Maoist totalitarianism. Certainly, litigation between citizens has become fairer.
But not much progress has been made for people suing the state at least at local level (for forced abortions, contamination, unsafe products, land seizure and so on) or for the state taking action against people using the criminal law (harsh penalties, prosecution for mere non-violent dissent and so on).
One side thought reform from within was possible – if only you could get past the local corrupt officials you would get justice from the good people at the top. The other thought that that was a hang up from Confucian thinking – that you could appeal to the Emperor for justice – and only wholesale change could bring justice.
Either way, at the top (and obviously there are mixed voices at the top) it seems resistance to the rule of law has been growing in the past four or five years.
Herein lies the irony. As the west found with the Enlightenment and growing democracy, the rule of law, whether via a code or by the doctrine of precedent, brought stability. People knew where they stood. They did not have to second-guess the whims of capricious rulers. Further, people could go to law, rather than violence, to resolve disputes.
Chinese leaders have wrongly imagined they can apply the rule of law to commercial arrangements between citizens without having to worry about the rule of law between the state and the citizen.
But if there is no legal redress for resumed land and other forms of minority persecution, people are going to turn to violence.
And now we have a blurring of commercial and human rights law. If commercial people like Stern Hu get locked up without charge for months, merchants will become more wary.
(Incidentally, Australia should be careful that its anti-terrorism laws that allow for long periods of detention without charge do not leave us open to a accusation of hypocrisy.) Obviously trade will continue with China, but other things being equal, merchants will prefer to deal with rule-of-law states rather than non-rule-of-law states.
If Japan and India are offering the same price as China, you would deal with the former because their rule of law provides some certainty, even if not perfect. To the extent that that threatens Chinese economic progress it will hurt its people and contribute to unrest.
Australia has a large trade in international studies. This week the Chinese Communist Party newspaper and other state-backed newspapers questioned why it – and the iron ore and tourism trade — should not be boycotted because Australia had the temerity to allow exile Uighur leader Rebiya Kadeer a visa. The trade can be turned off capriciously by a state ruled by men, not law.
It could not happen in India. Indian students with a visa have a legal right to travel to Australia and the Government cannot stop them. The rule of law applies.
The more those in the Chinese leadership resist the rule of law, the less stable and prosperous their country will become.
Australia should be wary of putting too many eggs in the Chinese basket. It is one thing for economic conditions to cause trade disruptions, it is quite another to get yourself into a position where you are vulnerable to arbitrary political decisions with no redress.
Of their nature, relations with non-rule-of-law states are bound to be erratic because human whim plays a much greater role in those states.
Karl Marx got it wrong. He talked about the internal contradictions of capitalism leading to its collapse heralding a world of communism. In truth, though, it is totalitarian communism that has the internal contradictions and the seeds of its own collapse.
As we saw in the Soviet Union and will see in China those societies are doomed either way. Either they adopt the rule of law which in effect ends totalitarian communism or they fail to adopt the rule of law and that form of government becomes unstable and it is only a matter of time before it collapses. Let’s hope it is sooner and less bloody than later and more bloody.
CRISPIN HULL