America’s rule of law v. China’s ‘rule by law’

The contrast between America’s rule of law and China’s “rule by law” is presently on vivid display. 

As the world’s oldest democracy, the United States is the foremost exponent of the rule of law, which it routinely posits against authoritarian systems and their arbitrary one-man or one-party diktats.

Communist China, which calls itself a “People’s Republic” and uses the democratic title “president” for its unelected leader, is happy to cloak its governance model in Western-style language. But its contrived rule-by-law formulation is hardly equivalent to democracies’ institutionalized legal systems. The law is what the Chinese Communist Party (CCP) says it is — consent not requested, dissent not allowed, political instability averted. Very neat, very Orwellian.

Despite appropriating Western trappings, the world’s dictators fare poorly on the moral and reputational scale when compared to free countries. That is why the autocratic regimes in Beijing, Moscow, Pyongyang and Teheran are celebrating America’s post-election disarray. The despots find the spectacle particularly delicious since it is being waged precisely on legal grounds.

The rules governing elections — that is, the 50 sets of state rules — were necessarily extemporized in response to pandemic-imposed constraints. That made them ripe for irregularities and for perceptions and suspicions of manipulation.

Each side in a roughly equally-divided country claims the moral and constitutional high ground and accuses the other of sabotaging America’s republic. One charges fraud and election theft; the other condemns frivolous lawsuits and abuse of process. Each alleges a political “coup.” 

The apocalyptic language tarnishes America’s democratic image and provides limitless fodder for autocrats to mock democratic chaos. Worse, it poses the danger of political violence from extremists on the left and right who encourage a literal call to arms or wish to exploit an opportunity to push their own agendas. Pro- and anti-Trump zealots risk falling into a trap that America’s enemies will surely cheer.

Beijing already has exploited the distractions of the presidential campaign and the pandemic to demonstrate the efficiency of its rule-by-law method. When it tired of citizen protests in Hong Kong this year, it simply scrapped the “one country, two systems” guaranteed in the United Kingdom’s 1997 handover. 

Then, just as unilaterally and arbitrarily, it imposed a new National Security Law imposing draconian limitations on free expression. Considering the ineffective Western response so far, the people of Hong Kong probably have not seen the worst of China’s crackdown.

With Hong Kong’s suppression under way, Beijing now seeks to extend its rule-by-law method exra-territorially in the next phase of its pressure campaign against Taiwan. Zhu Fenglian, a spokesperson for China’s Taiwan Affairs Office, said Beijing will soon take “targeted steps to severely punish in accordance with the law … a list of diehard Taiwan secessionists.” They presumably would be prosecuted under the 2005 Anti-Secession Law (ASL) mandating Taiwan’s “reunification” with the People’s Republic (which never ruled it).

Zhu said the punitive campaign “is absolutely not aimed at the vast majority of Taiwan compatriots.” But Beijing would be delusional if it disbelieved that “the vast majority” of Taiwan’s citizens overwhelmingly oppose submission to CCP rule, in direct defiance of the ASL.  

China has no legal reach into Taiwan, and pro-independence Taiwanese would be foolish to visit China where foreigners already risk arbitrary arrest. So Beijing is effectively signaling that it intends to “target” them in Taiwan or in third countries they may visit or transit.

Any attempt by China to apprehend or otherwise harm Taiwanese in their home country of Taiwan would be an act of force or coercion invoking the provisions of the U.S. Taiwan Relations Act. Japan’s defense minister this week expressed regional concerns regarding China’s increasing aggressiveness toward Taiwan and the coming Biden administration’s posture: “There’s a red line in Asia — China and Taiwan. … I haven’t yet seen a clear policy or an announcement on Taiwan from Joe Biden. I would like to hear it quickly. … America, be strong.”

China is more likely to act below the threshold that would provoke a direct Taiwanese and U.S. response by seizing Taiwanese traveling abroad. In recent years, it has kidnapped Chinese nationals living in Australia and over a dozen other countries, possibly including the United States.  

More often, kidnapping isn’t necessary to drag an individual back into the grasp of communist officials; torture abroad, or threats to family members in China, suffice. In 2018, the U.S. Justice Department stated its red line on Beijing’s extraterritorial reach: “The department will assist other countries if evidence of criminality is presented, but will not accept unilateral law enforcement activity by another country on our territory.”  

Neither the Trump nor Biden administrations is likely to accept Beijing’s latest rule-by-law gambit against Taiwanese opposing unification, so any request to send a Taiwanese person in America to China for prosecution inevitably would trigger a new arena for Sino-U.S. confrontation and retaliation.

To avoid this new conflict front, China must recede from its threat to proclaim the new crimes in the first place. History offers a lesson for Washington. In late 2004, Beijing first floated the possibility of adopting an anti-secession measure — a potential game-changer intended to counter the U.S. Taiwan Relations Act and establish a “legal” basis for China to attack Taiwan at a time of its choosing.

The Bush administration, unhappy with Taiwanese President Chen Shui-bian’s flirting with independence talk, issued a perfunctory statement about preserving stability across the Taiwan Strait rather than the stern warning urged by some in the Defense Department. As months passed without Washington signaling a stronger U.S. stance, China moved ahead and announced passage of the ASL in March 2005. 

Congress should consider legislation declaring China’s contemplated new law a nullity and prohibit any U.S. cooperation to “repatriate” Taiwanese citizens to China. It also should revive the Taiwan Invasion Prevention Act (TIPA) and extend its provisions to any Chinese regime actions against individual Taiwanese.  

As for America’s own rule-of-law issues, after the fate of the U.S. Senate is decided in Georgia on Jan. 5, Congress should meet its constitutional obligation to certify the 2020 election, restore “domestic tranquility,” and begin repairing America’s status as the world’s leading democracy.

It also should address the need for the federal and state governments to examine their respective roles in generating higher confidence in the 2022 and 2024 elections than was evident in 2020.  Achieving greater uniformity in the 50 state systems would be a good place to start.

Joseph Bosco served as China country director for the secretary of Defense from 2005 to 2006 and as Asia-Pacific director of humanitarian assistance and disaster relief from 2009 to 2010. He is a nonresident fellow at the Institute for Corean-American Studies and a member of the advisory board of the Global Taiwan Institute.