Issue 2, June 2008
|The Legal System in China|
For thousands of years, the Chinese legal system was based on Confucian ideology that emphasized ethics and relationships between the people and their leaders. Disputes were settled through relationship-based methods such as mediation. The court system was undeveloped and rarely used. When Communism was introduced as the prevailing ideology after 1949, a Marxist-Leninist overlay was constructed that built on traditional adherence to Confucian-based conflict mediation. It was not until the economic reforms of 1978 that a true institutional legal system was introduced, mostly to deal with the demands of the growing economy. As Western businesses moved in to China, they began to demand some of the same protections they enjoyed back home, namely a way of seeking redress from the predatory actions of the state or other individuals and entities. As the CCP scrambled after 1978 to train lawyers and codify laws, business law took precedence over laws pertaining to civil liberties and individual freedoms. Despite an enormous growth in the legal industry (The Center for Strategic and International Studies reports that today there are 120,000 certified lawyers, 12,000 law firms, and 300 law schools, compared with 2000 lawyers and 2 law schools in 1979) the system is today still grossly lacking in its neutrality, capacity, and mandate.
The Chinese Legal System Today
It is important to note that, by design, China does not technically have an independent judiciary or a legal system that operates outside the influence of the ruling Chinese Communist Party. This is an important distinction between China and Western democracies in which the court system is a critical component of the checks and balances placed on the other branches of government. In fact, China’s lack of an independent judicial system exacerbates all the other fault lines running through the totalitarian state; there simply is no effective recourse available to individuals whose interests are harmed by the excesses of CCP officials, laws, and institutions. Think of the scope and scale of what is addressed in the United States everyday through civil and criminal litigation – redress from unfair laws and business practices, compensation for injury, fraud, and lax environmental regulation, assignment of liability, justice for victims of public and private malfeasance, marital and custody disputes, protection of private physical and intellectual property. Some would argue ours is an overly litigious society. However, the average individual seeking a forum in which to officially air grievances and pursue some form of justice in China has a difficult time.
Most importantly, China's legal system lacks neutrality. The CCP approves all court appointments, and judges are technically responsible to the Party, not to the people. From the Basic, Intermediate, Higher Level People’s Court, and Supreme People’s Court, the CCP hand is evident. The CCP’s Political and Legal Committee has the power to intervene in deliberations, and even to overturn verdicts issued. In addition, the infrastructure lacks capacity; for example, there is one lawyer per 10,000 people in China (the United States ratio is one lawyer per 550 people). And finally, in many Western democracies, the ultimate arbiter of a law’s constitutionality is the court system. In China, this function becomes muddled and the CCP apparatus often rules on the interpretation of its own laws.
Civil and Commercial Law
Most tangible reform in China’s legal system has taken place in the area of civil litigation. These primarily concern business disputes associated with China’s rapid economic modernization in which people seek protection and redress from a wide array of abuses committed in the pursuit of economic competitive advantage: patent infringement, business transactions that are not honored, individuals who have been displaced by private and state-directed construction, and labor disputes, to name a few. Since 1978, prompted by the need to provide a safe environment for foreign capital, the CCP has increasingly codified business laws and sought to train its lawyers and judges to deal effectively and efficiently with the growing civil and commercial caseload. With the current system skewed toward resolving business-business and state-business disputes, the individual plaintiff is often at a significant disadvantage. For this reason, Donald C. Clarke, a Chinese law specialist, has said, “The courts are not necessarily where you would go to seek justice in China.”
Other avenues open to individuals who feel they have complaints against the state include the petition system, mediation, and protests – none of these options are terribly effective, either. The petition system auspiciously provides an avenue by which individuals can lodge complaints about treatment they have received from the government, other individuals, or private companies. Remember, in China the hand of the state is involved everywhere, visibly and invisibly, even when disputes seem to involve private companies. There are few private companies that do not have some form of government subsidization and/or regulation. When petitions filed reached a high of 13.7 million in 2004, new laws were passed making the process much more difficult. Studies have revealed that currently less than 0.2% of all petitions get any response. A survey of 1200 petitioners in Beijing quoted by the US-based Council on Foreign Relations found that 71% of petitioners experienced retaliation or intimidation upon filing their complaints; and only 5% reported that the authorities took them seriously. In 2008, BBC reporter John Simpson filed a retrospective on the 1989 Tiananmen Square incident that included a visit to the State Petition Office to investigate how seriously the government was taking individual complaints nearly 20 years later. He was denied access to the office and witnessed petitioners who tried to speak with him beaten and detained. It is symbolic that one of the major Petition Offices in Beijing has been razed in construction surrounding the 2008 Olympic Games.
Another alternative to the court system includes mediation, which has been described as only somewhat effective, and for which there is not adequate capacity to process all disputes. Some instead turn to protests, mainly in rural areas where they get local attention; protesters are often disbanded, and their complaints never communicated to high-level decision-makers. And finally, an important alternative to litigation (one that is used to powerful advantage elsewhere) is severely lacking in China: free media. Many scandals and disputes are settled in other countries simply because they find their way to the newspaper or other public outlets. Perpetrators are shamed and agreements are negotiated. Without recourse to a free press (see Media section), the Chinese are denied access to a key avenue for airing grievances.
The most important distinction between how China and many other countries deal with criminal defendants is in how they perceive presumption of guilt. In the West, criminal suspects are presumed innocent until proven guilty, and generally cannot be arrested and charged without sufficient evidence of wrongdoing. When a suspect does go to trial, it is the duty of the prosecution to prove his/her guilt beyond a reasonable doubt. Abuses exist within these systems, but the underpinnings favor the individual defendant against the state until guilt is proven.
In China, suspects are assumed guilty by the system and must be proven innocent. This is a critical distinction; suspects face incredible hurdles in proving their innocence, and the Chinese National Bar Association reports that 70% of defendants go to trial without a lawyer. It is thus no surprise that, in China, there exists a 99% conviction rate for criminal defendants. The Appeals System similarly favors the prosecution. The China Statistical Yearbook (CSY) 2003 reports that of the nearly 130,000 cases accepted for appeal in 2002, only 4% were resolved, and, of these, only 0.5% of the verdicts were overturned. Punishments for convicted criminals is harsh and includes the death penalty which can be given for 68 offenses, two-thirds of which are nonviolent crimes such as bigamy, internet-hacking, cyber-crimes, stealing gas, and tax evasion (The State of China Atlas, 2005).
The Extra-Legal System
The discussions above only pertain to those civil and criminal defendants who make it into the formal system or who are given the freedom to pursue alternatives. Much of Chinese justice for criminal and civil matters is meted out extra-judiciously, at the hands of the police and/or local officials. Although preventive laws and measures are being slowly adopted, it is not unusual for a Chinese suspect to be arrested and routed past the legal system, directly to what have been called “re-education centers,” which are, in effect, labor camps with an indoctrinistic flair. Many of these are dissidents who have criticized the CCP or violated any of the state security laws surrounding the media. In these cases, very often, even the defendant’s families can be punished and come under indefinite surveillance by CCP officials.
Freedom from unreasonable search, seizure, torture and detention, as well as the right to a fair trial are major demands placed on China by the human rights community worldwide (see CCP section for a more thorough discussion of human rights). China has responded with what some deem progressive measures in the past few years in the form of The Second Five-Year Reform Program for the People’s Courts begun in 2004 with its “50 Goal Agenda.” These goals include: new laws limiting pre-trial or extra-legal detention; laws that add torture, official abuse, and retaliation to the list of prosecutable offenses; and efforts to bring down use of the death penalty. Part of this effort was spurred on by pressure from the International Olympic Committee when it granted China the 2008 Games.
The CCP aims to build the legal infrastructure of the country and has embarked on this in its technocratic manner of studying the laws of other countries and carefully codifying its “Chinese adaptations.” However, many of the abuses occur at the hands of local and provincial officials among whom corruption is rampant and over whom the central CCP is able to exercise little control. When central party elites have been able to detect abuses and arrest responsible officials, the press is used to showcase progress for their own people and to outside critics. The very public execution of a corrupt Food Safety regulator last year is an example of this.
Regardless, most agree that without adequate transparency within the Party, or within the legal system in which Party officials wield a heavy hand, reform will be difficult. While the CCP has promised that there will be movement on both laws and procedures, skeptics predict that the situation on the ground may not change much. In articles about how Beijing is preparing to thwart protests at the Olympics, the Western press is currently full of stories about the arrest of suspected dissidents in China, as well as the arrest and detainment of lawyers who defend them.
As in other areas, reform in the legal system has often served only a safety valve function - more cases processed, more complaints heard, yet the outcomes remain largely unchanged. Whether these small steps forward ultimately add up to momentum remains to be seen, but many believe that an expanding legal system could bring about true democratic progress in the PRC. For now, though, there are many who believe that such small ventings in the system actually serve to strengthen the totalitarian state. As John Thornton has pointed out, “the question is whether the CCP can succeed in building a fair and independent judicial system while maintaining control at the very top.”