China Neican: Law, Australia-China, Science, Economy, Danmei

27 January 2021

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1. Xi’s China and law

There are two terms used frequently in discussions of law in China. The first is fazhi (法制), referring to the legal system. The second is fazhi (法治), meaning “rule by law”. Note that the romanisation of these two Chinese terms is the same. We are concerned here with the second concept, so any reference to fazhi below should be taken to mean “rule by law”.

You can watch Yun discuss China’s fazhi project under Xi at the Australian National University with Jonathan Liljeblad, Helen Zhang, and Graeme Smith.

First thing first, the CCP translates the Chinese term fazhi as “rule of law” in English. This is incorrect. Let’s not conflate the two concepts.

For a country to be under the “rule of law”, at the bare minimum, the state should NOT be above the law. In China’s case, the CCP is the leviathan that sits above the law. More precisely: the CCP is the predominant force that determines the rules, outcomes and values of China’s legal system.

Essentially, the Party is trying to create an effective and mature legal system with laws, regulations, institutions and norms to help it run China and reinforce its power. Law is a useful tool for the Party not only because it’s important for dealing with China’s social and economic complexities, it also legitimises power.

Under Xi, fazhi has become a top priority and a sizzling hot term in the official lexicon. 

Earlier this month, the CCP Central Committee issued a document titled Governing China with the Law Construction Plan (2020-2025)《法治中国建设规划(2020-2025年)》. This plan provides the blueprint for developing China’s legal system during the 14th Five Year Plan period (2021-2025). It points out that developing a fully-fledged system that enables the Party-state to govern China using law is of “strategic” and “fundamental” importance.

The plan lists areas of priority, including implementing the constitution, refining legal rules and standards, building the implementation system for governance through law, building a system of intra-party regulations, and reinforcing laws to support China’s sovereignty, security and developmental interests.

At its heart are the two key principles that have been espoused by the Party in its recent efforts to mould China’s legal system:

Adhere to the centralised and unified leadership of the Party: firmly grasp that the Party's leadership is the most fundamental guarantee of the socialist rule of law. Adhere to the Party's leading role in legislating of laws, ensuring law enforcement, supporting justice, and abiding by the law. Give full play to the Party's leading role in overseeing the overall situation, and coordinating all parties to ensure the correct direction in building a China governed by law.

坚持党的集中统一领导。牢牢把握党的领导是社会主义法治最根本的保证,坚持党领导立法、保证执法、支持司法、带头守法,充分发挥党总揽全局、协调各方的领导核心作用,确保法治中国建设的正确方向。

Insist on implementing the socialist theory of the rule of law with Chinese characteristics: thoroughly implement Xi Jinping's thought on the rule of law, systematically summarise and apply the vivid experience of building the rule of law in socialism with Chinese characteristics in the new era, and continuously promote the innovative development of theory and practice.

坚持贯彻中国特色社会主义法治理论。深入贯彻习近平法治思想,系统总结运用新时代中国特色社会主义法治建设的鲜活经验,不断推进理论和实践创新发展。

(emphasis added)

By now, you’ve probably noticed the paradox in the Party’s fazhi concept: on the one hand, the Party is above the law, on the other hand, it incessantly speaks of the importance to abide by the law.

To illustrate this paradox: the CCP regularly tramples on the PRC constitution, including Article 35, under which PRC citizens have the rights of freedom of speech, press, assembly, association and demonstration. In addition, CCP members can’t be prosecuted by the Chinese state unless approved by the Party.

To square this circle, let’s refer back to the communiqué from the 4th Plenum of the 18th CCP Central Committee (October 2014), which focused on law as its theme:

The Party’s leadership and the socialist rule of law are consistent; the socialist rule of law must adhere to the Party's leadership, and the Party's leadership must rely on the socialist rule of law. Only by adhering to the rule of law and enforcing the rule of law under the leadership of the Party can the people's mastery be fully realised and the rule of law in national and social life be promoted in an orderly manner.

党的领导和社会主义法治是一致的,社会主义法治必须坚持党的领导,党的领导必须依靠社会主义法治。只有在党的领导下依法治国、厉行法治,人民当家作主才能充分实现,国家和社会生活法治化才能有序推进。

In other words: the Party’s will is law.

The Party’s approach towards legal system reform is characteristic of its current approach more generally towards reform. Under Xi, reform is aimed at political centralisation, reinforcing Party supremacy, and further integrating the Party and the state.

This, however, was not always the uncontested vision of the Party leadership. 

In 1987, at the 13th CCP National Congress, then General Secretary Zhao Ziyang proposed political reform by separating the Party from the state (党政分开):

The Party has led the people in formulating the Constitution and the laws, and the Party should operate within the limits of the Constitution and these laws. The Party has led the people in establishing state power, mass organisations, and various economic and cultural organisations, and the party should ensure that the regime is fully functional and it should fully respect, rather than run the whole show of mass organisations as well as enterprises and institutions. 

The Party's leadership is political, i.e. leadership in political principles, political direction, major decisions and the recommendation of important cadres to the organs of state power. The main way in which the Party exercises political leadership in state affairs is to make the Party's ideas into the will of the state through legal procedures, and to realise the Party's line, guidelines and policies through the activities of Party organisations and the exemplary role of Party members in driving the masses. 

The Party and the organs of state power have different natures, different functions and different forms of organisation and ways of working.

党领导人民制定了宪法和法律,党应当在宪法和法律的范围内活动。党领导人民建立了国家政权、群众团体和各种经济文化组织,党应当保证政权组织充分发挥职能,应当充分尊重而不是包办群众团体以及企事业单位的工作。党的领导是政治领导,即政治原则、政治方向、重大决策的领导和向国家政权机关推荐重要干部。党对国家事务实行政治领导的主要方式是:使党的主张经过法定程序变成国家意志,通过党组织的活动和党员的模范作用带动广大人民群众,实现党的路线、方针、政策。党和国家政权机关的性质不同,职能不同,组织形式和工作方式不同。

How would China look today if Zhao’s reforms had been implemented?

Alas, hopes for progressive political reform were snuffed out following the crackdown of the Tiananmen protests in 1989. Today, Zhao’s political reform agenda is an inconvenient relic for the Party leadership. Many have forgotten that the CCP even contemplated real steps towards liberal political changes in the 1980s.

2. Australia’s China policy

As observers of Australia-China relations, we want to put forward a list of points that may help us think about this China policy in 2021. These points are for the Australian context, but some may be relevant to other countries dealing with similar challenges. 

First, accept uncomfortable realities. The past is not coming back. China, the US, and Australia have all changed in the last decade or so. The world has moved on. There is no magic button that can “reset” Australia-China relations. Navigating Australia’s China challenge will be hard. Relations may be bad for years to come unless both sides make it a priority to improve them. And there is little evidence that Beijing or Canberra are seriously contemplating this yet. Therefore, we should prepare for the rough ride in bilateral relations to continue in 2021.

Second, Australia’s policy towards China should be based on principles. Canberra should treat China based on the same principles and rules as it would other countries, and not double standards. If Canberra calls China out on misbehaviour, then it should also be willing to do so when other countries behave in a similar fashion. This could include, for example, the spread of disinformation or the violation of human rights.

Third, Canberra needs to adopt an integrated approach to its China policy. China looms large in Australia across many domains, including economic, security, and a range of domestic policy areas. Better coordination and integration of China-related policymaking should be a high priority. This integrated approach needs to take into account and balance the different portfolio interests, and refrain from “over-national-securitising” problems.

Fourth, Australia’s China debate needs to be evidence-driven. Sweeping narratives based on dubious assumptions, mischaracterisation, and questionable research methodologies are counterproductive. They can distort how we perceive complex challenges, making diagnosing and responding more difficult. For example, foreign interference is a serious threat, but our responses need to be balanced and take into account the costs as well as benefits of potential policy responses, including possible harm to civil liberty and the effects on Chinese Australian communities.

Fifth, stop stigmatising China connections. Yes, acknowledge the threats from China, take them seriously, and respond appropriately in the national interest. But don’t stigmatise normal economic, scientific, and people-to-people exchanges. Doing so will make Australia less secure and less prosperous in the long run.

Sixth, treat Chinese Australians like any other Australians. Chinese Australians are Australians with the same rights and responsibilities of every Australian citizen. It is not fair that they are singled out for undue suspicion for foreign interference. It is not fair to question their loyalties based on their ethnicity or political views. And it is not fair to demand that they take political positions and actions, such as critiquing Beijing, when similar requests are not made to other Australians. They are real people like you and me, not screens for the projection of our fears and prejudices or pawns in some greater game.

In sum, there is no way back to the past (although we can reshape our understanding of it) for Australia’s China policy, it needs to move forward. And it can only be moved forward by confronting the uncomfortable realities, ambiguities and complexities of its China-related challenges.

3. Science and China connections

Scientific and research collaboration with China has been a hot topic all last year.

Recently, we’ve had the affidavit against Professor Gang Chen of MIT by the US Department of Homeland Security, a report by Prof Anne-Marie Brady on China’s Exploitation of Civilian Channels for Military Purposes in New Zealand, and Alex Joske’s submission to the Australian Parliamentary Inquiry into nationals security risks affecting Australian higher education and research sector. Many have raised concerns about these reports and the affidavit. 

United States

The affidavit against Chen alleges that he committed wire fraud, failing to file reports of foreign bank accounts, and making false statements in a tax return. Notably, there are no charges directly related to technology transfer or national security.

Chen’s MIT colleagues are also publicly challenging the allegations. Prof Zhigang Suo of Harvard University noted that the “evidence” presented in the affidavit included that Chen:

  • is an exceptional fundraiser for MIT

  • has served on an advisory committee of a university

  • is willing to promote MIT collaboration with Chinese institutions

  • has recommended other people for jobs and awards

  • made 19 trips to the PRC between 2016 to 2019

  • had co-authored papers with scientists from Chinese universities.

These are all very ordinary activities of a professor. The affidavit is drafted to make the normal activities of a professor appear suspicious.

On a side note, the affidavit called a local public school in Beijing “a state-owned school managed by local PRC government officials”. This is ludicrously but is also revealing: this is the framing based on which the affidavit’s author sees Chinese organisations.

The charges are laid in the context of the US Department of Justice’s China Initiative. The China Initiative is highly problematic as it overly focuses on wrongdoings with connections to China. As Margaret Lewis noted:

Professor Chen’s case underscores two major concerns with the China Initiative: an over-emphasis on national security and an under-emphasis on bias.

First, the China Initiative has increasingly emphasized prosecutions based on people’s alleged relationships with PRC-based entities rather than economic espionage. What counts as a national security concern has expanded from trade secret theft (with a foreign government as the intended beneficiary, i.e., economic espionage) to broader connections with foreign governments (and entities linked thereto), even if no actual or attempted transmission of intellectual property occurs.

Second, Professor Chen’s case highlights the concern that the China Initiative is “leading to discriminatory and stigmatizing investigations of people of Chinese descent.” The government press release announcing the indictment conspicuously states: “Chen is a naturalized U.S. citizen who was born in China.”

New Zealand

On Brady’s report on New Zealand, the University of Auckland and Victoria University of Wellington sent formal complaints to the University of Canterbury, Brady’s employer. The complaints alleged that there are false and misleading statements contained in the report and called Brady to amend her publication. 

The University of Canterbury subsequently began an investigation and dismissed the complaints against Brady, concluding that “given that it was intended for parliamentary submission and succinct, it recommended some phrases could be amended to provide clarity”. Brady received public support from many academics around the world because the investigation was seen as an attack on academic freedom.

Academic freedom and freedom of speech are very important to academics, universities and society in general. But academic freedom should not mean that academics have the freedom to publish false or misleading information.

Some academics suggested that academic rebuttal should be the way to address this issue, even though the original report was not a peer-reviewed academic paper. Some have done so. However, such rebuttals never receive the same media attention. The media would always pick up stories of “there is a problem” but almost never a subsequent story of “maybe there is not a problem” or “maybe the problem is not as big as we thought”.

We have also previously written about the perils of confirmation bias:

Ultimately, there are high incentives for misconduct and substandard research in the current media environment. Any work that confirms existing beliefs on China are usually very quickly covered by the media (especially if it involves an ‘exclusive’ or ‘leaks’), potentially used in policy reports and affecting public sentiment. Even if a retraction was to follow, the impact has already been felt.

Australia

One recent report that also takes advantage of confirmation bias is the Joske submission. Yun identified two major problems with research such as this: dubious implicit assumptions and questionable methodologies. On the assumptions, she notes that: 

First, not all technology transfer to China is detrimental to Australia’s national interests or the interests of Australian institutions.

Second, most of what universities produce and what these researchers work on is open source, that is, available to anyone wherever they are.

Third, much of the prejudice against Chinese researchers appears to be the misconception that they are only working to extract knowledge from Australian institutions, when in reality they are also knowledge creators.

On methodology:

The method of this research is problematic. For example, we do not know whether misconduct and non-disclosure is a widespread problem among all researchers since this submission only deals with researchers who participate in China’s talent-recruitment programs.

Looking at the crimes or violations committed by only one sub-group can lead to conclusions that are highly prejudicial. In addition, it can miss other important correlations and motivations.

We should look very critically at research that only looks into wrongdoings committed by one group, while not giving contexts such as wrongdoings committed by the general population (in this case, all researchers). Selective research and reporting contribute to discrimination and prejudice. Consider the controversy around the narrative of “Islamic terrorism” as an example.

But of course, rebuttals are unlikely to receive the same media coverage as the initial accusations.

If countries are serious about competing with China, then they should do everything they can to encourage these scientists and researchers to stay. Targeting Chinese researchers would only make them more likely to return to China to contribute their skills and expertise there. The most prominent example is Hsue-Shen Tsien 钱学森, today hailed in China as the father of China’s space and nuclear programs. He returned to China in 1955 after he was driven out of the United States due to xenophobic politics despite co-founding NASA’s Jet Propulsion Lab and serving in the US military.

4. Economy

It’s economic data time! Some data released this week may raise some eyebrows: 

  1. China’s economic growth in the fourth quarter of 2020 of 6.5 per cent year-on-year has beaten expectations. With GDP growth of 2.3 per cent, China was the only major economy in the world to avoid an economic contraction in 2020.

  2. China has overtaken the US as the world’s leading destination for foreign direct investment. This is because FDI into the US has fallen by 49 per cent in 2020, compared to China’s growth of 4 per cent.

  3. Australia had the fourth-largest trade surplus ever recorded despite China’s trade actions against Australia. 

On the GDP figures, for countries or companies looking to diversify away from China by intentionally reducing their exposure to China, it's getting harder. As China’s economy continues to expand faster than other markets, the opportunity cost of not selling to China when you can is also rising.

On the FDI figures, businesses have incentives to take into account both risks and returns. Despite the perceived increase in geopolitical risks associated with doing business in China, international investors appear to be willing to bear the additional risk for the potential gain. They are telling us something about their forecasts of risks and returns by voting with their investment dollar.

Former US President Trump’s antics and rhetorics against China have not managed to change that. Of course, investors sometimes get it wrong, as they did during the Global Financial Crisis. But then most governments didn’t see it coming either.

It is important to remember that this FDI figure is flow rather than stock, and is likely an anomaly due to the drastic decline of investment into the US last year due to the pandemic. However, this does not change the points made above.

On the Australia-China trade figures, despite China’s trade restrictions against Australia last year, Australia’s total export value to China has not changed substantially. Of course, it’s hard to know the counterfactuals — would that figure have grown if it wasn’t for the trade restrictions? In any case, it does seem that China’s sanctions have mostly been sound and fury. So why is that?

One explanation is that 56 per cent of Australia’s goods export to China is iron ore. Since Australia is one of the few global suppliers (accounting for 54 per cent of global iron ore exports), it’s difficult for China to fulfil its demand in iron ore without Australia. To really hurt Australia’s exports, China would have to hurt its economic growth. In the long run, China can invest in iron ore mines in other countries, but they will take years from investment to production.

So instead, China has been targeting other sectors such as agriculture, for which it can find alternative supplies. While they are politically powerful and sensitive sectors, they comprise a smaller portion of Australia’s exports to China. These sectors have also been protected by the Australian Government historically, which means it would be relatively easy for the Government to assist them again if it decides to.

China also restricted the import of Australian coal last year. Most of the Australian suppliers found alternative markets while China suffered a coal shortage this winter and had to pay higher prices on coal to make up for the shortfall. 

As Michael Zhou and Thomas Pantle argue:

Mutually beneficial trade links may appear tempting to use as political leverage in theory, but there are a number of reasons why the reality of attempting to put theory into practice is more complicated. Recent events in the Australia-China context make for a salient case study of why this is the case.

Some, including us, have argued that Beijing is willing to put up with some cost in punishing Australia as a way of warning other countries. In Chinese, the appropriate idiom is 杀鸡儆猴 (“to warn the monkey by killing the chicken”). If this was part of Beijing’s intent, then the plan has gone awry.

5. Boys Love and Danmei

Like many people, one of us (Yun) been following 耽美 (Danmei) literature and TV shows in China quite closely since the screening of The Untamed (陈情令), which has become a sensation even in countries outside China. One of the drawcards of The Untamed is the many 小鲜肉 (“little fresh meat”, refer to pretty young men) featured. The show is adapted from 墨香铜臭’s novel 魔道祖师 (Grandmaster of Demonic Cultivation).

Danmei, also known as Boys Love (shortened to BL) is a rapidly growing genre in China. Many people read fiction through online websites in serial format, rather than through published books. This can make the range of fiction more diverse as well as more responsive to readers’ demand.

The common feature of BL novels is that they feature a male gay couple. They are usually written by women and the target audience is also women (rather than gay men). One possible appeal of BL novels and shows is that men (unlike women) are usually not as constrained by rigid social norms. For rigid social pressures faced by women, you can check out The Story of Minglan (知否?知否?应是绿肥红瘦), set in Northern Song dynasty.

However, despite the rich and varied fictions that exist in China, for BL novels to be adapted to TV shows usually means many changes to plots. This is to pass the hurdle that is the National Radio and Television Administration (广电局), which is responsible for censorship of TV shows. For example, it banned all time travel shows 穿越剧 in 2011, a popular genre at the time, because they supposedly demonstrate discontent with the current lives (and therefore political regime). And indeed, 广电局 has become the butt of jokes among many TV show lovers in China.

For The Untamed, all traces of romantic love between the two main protagonists have been erased, and of course, any sex scenes, which existed in the original novel. It is possible to finish the show and believe that you were watching fraternal and brotherly love between the two protagonists. It is very unfortunate that despite the increasing acceptance of LGBTQ+ in China, censors always hold much more conservative attitudes.

In late 2019 right after the screening of The Untamed, the author of the original novel 墨香铜臭 was arrested and charged with “illegal business”. There are speculations that it was for “pornography”, which may be related to her writing of gay sex.

Just this month, there are rumours that the Chinese Government has banned all BL-themed shows (even though they never show it explicitly) and that The Untamed will be forced to be taken off streaming sites. Due to the success of The Untamed, there are estimated 50 “double male lead shows” 雙男主劇 (shows adapted from BL novels) scheduled for release this year. This includes some big IP (in China, it means those adapted from popular novels) such as 皓衣行 (Immortality), which Yun is really looking forward to.

It’s very sad for those of us that love watching Chinese dramas to see censors take such a heavy-handed approach. The authorities are clearly uncomfortable with the changing social and moral attitudes that are reflected in entertainment.

South Korean TV shows and movies shot up in popularity around the world and became a force of soft power for South Korea after the relaxation of censorship.

Quote

Since we mentioned The Story of Minglan in the previous section, we will say more here. Its Chinese name 知否?知否?应是绿肥红瘦 came from a famous poem from the Song Dynasty by 李清照 Li Qingzhao:

如夢令

昨夜雨疏風驟
濃睡不消殘酒
試問捲簾人
卻道海棠依舊
知否
知否
應是綠肥紅瘦

Tune: As If in a Dream

Last night the rain was intermittent, the wind blustery.
Deep sleep did not dispel the lingering wine.
I tried asking the maid who raised the blinds,
She said the crab apple blossoms were as before.
“Don’t you know?
Don’t you know?
The greens must be plump and the reds withered.”

Translation from Ronald Egan’s In The Burden of Female Talent: The Poet Li Qingzhao and Her History in China

Li Qingzhao is the most famous female poet in Chinese history. The Song Dynasty is known for 詞 (ci, lyrics), which are set to tunes. In this case, it is set to the tune of “As If in a Dream”. There are also other lyrics set to the same tune, including another one also composed by Li. They must all follow the same conventions (e.g. number of characters per line, their tones, and patterns of repetition).

According to Egan, the poem is carefully crafted to present the reader with a lasting image of a woman being described as wasting away (“withered”).

China Story

  • Yun Jiang, Stigmatising China connections: Problems with research on research collaborations: Researchers of Chinese heritage have come under increasing suspicion in countries such as the US, Australia and New Zealand, as potential sources of national security threats. In recent years, media reports have regularly insinuated their wrongdoing and divided loyalties. These stories are often based on studies that purportedly reveal the shadowy connections between these researchers and the Chinese party-state or military. But this sweeping narrative is based on dubious (and often unstated) assumptions, mischaracterisations, and studies with questionable research methodologies.

  • PERSPECTIVES: Future of Australia-China relations by Nathan Atrill, Elena Collinson and Kate Clayton. The China Story blog is introducing a new Perspectives series, where we present a number of viewpoints from different people on the same topic. Nathan thinks it’s time to let go of the notion of ‘reset’, while Elena calls for a new strategy and framework. Kate focuses on potential collaborations on climate change and energy.

Chinoiserie

  • James Curran takes a critical look at the Trump administration’s “Strategic Framework for the Indo-Pacific”: The document is inviting readers to view an American foreign policy establishment at full steam, a global superpower still with reach and capability. But is it accurate? Is it a picture of American power as it is or as it once was, like a veteran marksman at a firing range trying to hit everything that moves?

  • Margaret K. Lewis argues that “Gang Chen’s case should be the end of the DOJ’s ‘China Initiative’”: The Department of Justice launched the "China Initiative" two years ago to counter perceived "national security threats." But with the recent indictment of MIT professor Gang Chen — whose colleagues delivered a strong, coordinated show of support on his behalf — we have a clear example of how the policy fails.

  • Pankaj Mishra asks “What Are the Cultural Revolution’s Lessons for Our Current Moment?”The great question of China’s Maoist experiment now looms over the United States: Why did a powerful society suddenly start destroying itself?

  • Tianyu M. Fang argues that the current increased scrutiny and racial profiling of ethnic Chinese Chinese scientists and academics evoke memories of Cold War-era McCarthyism: The lesson here, perhaps, is to recognize the layered complexities and deep contradictions in the politics of Chinese individuals rather than inciting lazy Sinophobia and loyalty tests.