REFORMS OF THE JUSTICE SYSTEM IN CHINA

REFORMS OF THE JUSTICE SYSTEM IN CHINA

Andrew Jacobs wrote in the New York Times: “To be sure, legal analysts and rights advocates say China has come a long way since the Maoist years, when justice was meted out according to the whims of Communist Party officials often unfamiliar with the niceties of criminal law. Since the 1980s, China has built hundreds of courthouses, opened dozens of law schools and produced legislation that, on paper, intricately describes the rights of defendants and sets out limits on the police.

“Stéphanie Balme, an expert on China’s justice system at the Institut d’Études Politiques de Paris, told the New York Times that ordinary Chinese had benefited enormously from such reforms. “For small civil disputes and ordinary justice, especially in regional cities, daily justice is much better,” she said. “But when it comes to criminal justice, especially big trials and ones that are political, there has been absolutely no fundamental change.” [Ibid]

Tons of new laws have been passed. Newspapers publicize them and give information about telephone helplines. In May 1996, the Chinese Parliament revised the Chinese criminal code providing defendants with greater access to counsel, curtailed pretrial detention, gave defense lawyers the chance to challenge prosecutors, and added the presumption of innocence. But so far these reforms have not found their way in practice to many local criminal courts. One new law allows plaintiffs, not just judges and prosecutors to present their own evidence in a civil case. In 2004 there was discussion of introducing reforms to reduce the ability of the police to send people to labor camps without a trial.

The legal system is much less politicized than it was 20 or 30 years ago. Counterrevolutionary laws were taken off the books in 1996. In some ways it seems that the government is attempting to deal with social problem, complaints through the legal system so that the political status quo remains intact.

The system does sometimes respond to demands from society. In 2003, Sun Zhugan was beaten to death by police resulting in fewer restrictions on people moving around inside China. In 2005, She Xianglin was found innocent of murder after 11 years in jail, spurring death penalty reform.

The Communist party is ambivalent about the changes. The new laws are viewed as a way to crack down on corruption, improve China’s image abroad and get local governments to comply with national laws. But there are also worries that the changes may challenges the party’s grip on power.

Activist are pushing the idea that no one, even top party bosses, are above the law. Beijing to some degree has encouraged people to the use of the legal system to fight corruption and other problems but draw the line at fundamental challenged of the power of the Communist party.

Courts today sometimes defend property rights and business contracts even when powerful state interests are on the other side.

See Private Property, Business Customs, Economics; See Death Penalty Below

Beijing’s vow to create an impartial legal system has largely been unfulfilled. Advocates---known as right defenders, that includes writers, lawyers, grassroots organizers that help peasants left behind by the economic boom---are routinely arrested, harassed and beat up.

Greater Rights for Chinese Defendants

In March 2012, Sharon LaFraniere wrote in the New York Times, “China moved to enhance the rights of suspects and defendants in criminal cases, recommending that its handpicked national legislature adopt some key safeguards common in Western countries. The hard-fought changes, amendments to the Criminal Procedure Law, were presented to the National People’s Congress and are almost certain to be adopted next week. They curb the power of the police and prosecutors to detain suspects without notifying relatives, to use evidence extracted by torture and to keep defense lawyers at bay. [Source: Sharon LaFraniere, New York Times, March 8, 2012]

Still, legal analysts said, much of the state’s overwhelming advantage over criminal suspects would be preserved. “There is no question these are welcome changes,” said Mike McConville, a Hong Kong law professor and the author of a recent book, “Criminal Justice In China.” “What I am saying is that they do not go far enough.”

The legislation---by the first most significant before the National People’s Congress this session---includes the most sweeping revisions to the Criminal Procedure Law since 1996. An initial draft of the amendments published last year triggered fears that the police would be given even greater power. About 75,000 people responded to the government’s invitation for online comments.

The amendments would extend new protections to suspects and defendants. For example, the police would be required to make video and audio records of interrogations of suspects who face a death sentence, life imprisonment or, according to Mr. Chen, a prison term of 10 years or more. Legal experts characterized the electronic recordings as a welcome safeguard. Only about 15 states in the United States have adopted such a requirement, one expert said. A suspect would be allowed to meet a defense lawyer without permission from the police, except in cases involving national security, terrorism or grave allegations of bribery. Legal aid would provided to those in economic need before and during trial.

Mediation Over Western-Style Rule of Law?

Evan Osnos wrote in The New Yorker, “As Chinese authorities continue to round up lawyers, activists, and others suspected of being sympathetic to mounting calls for more rapid reform, I’ve noticed a number of recent comments that China has not simply slowed down the process of opening up, but has, in fact, mothballed previous attempts to improve Chinese courts as a site of conflict-resolution---a “post-Lehman drift away from western ideas of rule of law,” as the Financial Times put it last week. “Legal experts say there is renewed support for civil cases to go to mediation, a process conducted by a Communist party official, rather than to court---party wisdom trumping the law.” [Source: Evan Osnos, The New Yorker, March 2, 2011]

“There has definitely been a significant push over the last several years to promote the use of mediation to resolve civil disputes---at multiple levels of the dispute-resolution process,” one lawyer told Osnos. “One aspect of this is mediating cases at the grassroots, community level to decrease the number of disputes that turn into litigation. Neighborhood committees and local [government agencies] play an important role at this level. During a trip to [a southern city], I visited a local community that had gained some national renown for its success in mediating disputes. The head of the neighborhood committee proudly called his community a “zero litigation” [district]---and also highlighted that there hadn’t been a single petition filed from his community in the last year. Both somewhat chilling statistics, although that was certainly not his intention in proudly sharing them with us.” The lawyer also said, “There has also been a big push within the court system itself to resolve cases through mediation, with judges acting as mediators. Some local courts have even incorporated the number of cases successfully mediated as one measure of judges” work performance.” [Ibid]

Osnos wrote; “I see all of this as being related to the current emphasis on harmonious society / social stability.” He sees “the push to increase mediation is part of a larger trend away from formal, legal processes and the more transparent recognition and displaying of conflict that they can represent. “The Three Supremes---the current mantra of the Supreme People’s Court---are the Party, the People, and the Law---in that order. There is some dispute as to whether there is any hierarchy in the order in which the three supremes are stated, these people are definitely in the minority. “There is also strong rhetoric right now from the Party’s Political and Legal Committee and Ministry of Justice emphasizing the obligation of lawyers, for example, to keep in mind the “big picture,” to play their role in upholding social stability, and to follow the leadership of the Party. Following the law is also thrown in there, but clearly not the priority of the moment.” [Ibid]

Another lawyer was similarly struck by a recent encounter with a “relatively senior [Supreme People’s Court judge who] complained to me that the push for mediation was weakening people’s legal rights because judges were feeling pressure to get all sides to compromise in mediated agreements. He felt like they were getting pressure not to act like judges applying the law anymore and thought this was an untenable situation.” [Ibid]

Mediation and Tighter Control over Chinese Courts

Willy Lam wrote in China Brief: Chinese Chief Justice Wang Shengjun’s advocacy of out-of-court mediation as a favored means of settling civil disputes and “enhancing social harmony” has raised concerns about the further deterioration of the country’s rule of law and judicial independence. At a recent seminar for senior judges, Wang, who has been president of the Supreme People’s Court (SPC) since early 2008, praised tiaojie (“mediation and reconciliation”) as an “effective way to handle social conflicts and promote harmony.” He asked the judges to “aim for a synthesis of mediation and adjudication, with priority being given to mediation.” “Upholding the priority of mediation tallies fully with the original spirit behind China’s law-making,” he indicated. “It is also a development of legal-culture traditions such as “valuing harmony” and “playing down litigation and ending conflict?” [Source: Willy Lam, China Brief, June 17, 2011]

The National People’s Congress (NPC), China’s legislature, passed the “Law on mediation of the People’s Republic of China” in August 2010with the purpose of building multiple layers of institutions for pursuing “a harmonious society.” An NPC spokesman indicated at the time that “mediation and reconciliation is the first line of defense against contradictions in society? While police, prosecutor’s offices, courts, as well as party and government departments are charged with implementing tiaojie, the courts have been at the forefront of promoting Chinese-style reconciliation. Since 2009, Chief Justice Wang has instructed regional and grassroots-level judges to play a key role in persuading parties to civil conflicts to settle out of court. In some provinces, at least half of civil cases handled by the courts have been resolved through mediation instead of adjudication. [Ibid]

Wang pointed out in last March’s SPC Report to the NPC that 65.29 percent of civil and business-related cases heard last year by courts of various levels were dropped in favor of mediation. This was 3.31 percent more than the comparable figure in 2009. Indeed, Chief Justice Wang noted as early as 2009 that Chinese courts had the prime mission of “upholding [economic] growth, upholding people’s livelihood, and upholding [socio-political] stability.” “Judges are social workers as much as legal workers,” Wang asserted. “While judges should know how to use the law to handle cases, they should be even more conversant with ways and means of defusing social contradiction.” [Ibid]

The substitution of the due process of law by mediation, however, has been criticized by experts as eroding the rule of law, and depriving citizens of their constitutional rights of being protected by legal and judicial institutions. Ong Yew-kim, an adjunct professor at Beijing’s China University of Law and Political Science, pointed out that tiaojie was, in fact, evidence of a rolling back of legal and judicial reform. “The professional status of the courts has been compromised since judges are asked to engage in the political task of upholding social harmony,” Ong said. “Ordinary Chinese who want to seek legal redresses may be turned away by the courts under the pretext of maximizing harmony.” Vice-President of Beijing’s Renmin University Wang Liming warned that legal professionals should “guard against the judicial tendency of putting excessive emphasis on mediation.” “Courts are not mediation organizations,” said Wang, a legal scholar and NPC member. “Putting mediation above adjudication is at variance with the social status and functions that the law has given our courts.” [Ibid]

Tiananmen Mothers and Tainted Milk Cases Through Mediation

Willy Lam wrote in China Brief: Two recent cases of tiaojie, which have been handled by police in tandem with judicial organs, have underscored the dangers of putting harmony above the rule of law. In the run-up to the 22nd anniversary of the June 4, 1989 crackdown, the Tiananmen Mothers---a world-renowned NGO seeking justice for the massacre victims---disclosed that authorities in the capital had tried to “mediate” with the parents of a Tiananmen victim by offering them an undisclosed sum of money. The strings attached to this tiaojie ploy were that the parents would have to give up their right to sue the party and government for responsibility for the killings. In an open letter released on June 1, the Tiananmen Mothers said this attempt by the powers-that-be to seek a “private settlement” through paying hush money amounted to “desecrating the spirit of the June 4 victims and hurting the personal dignity of the victims’ relatives.” [Source: Willy Lam, China Brief, June 17, 2011]

The other incident involves the hundreds of thousands of parents whose infants fell sick in 2008 and 2009 after consuming milk power tainted with melamine. Since then, efforts by the victims’ relatives---as well as by Zhao Lianhai, the well-respected head of an NGO representing the aggrieved parties---to take the manufacturers to court have been in vain. Attempts by four parents to seek compensation via Hong Kong courts were also unsuccessful. Zhao himself was sentenced last November to two-and-a-half years in jail for “inciting social disorder.” Since 2010, however, representatives of the China Dairy Products Association (CDPA) as well as relevant health and police departments have been putting pressure on concerned parents to consider out-of-court tiaojie. Last month, the CDPA announced that 270,000 families had accepted a total of 910 million yuan (US$) of compensation. Chinese and Hong Kong media have reported that as a result of pocketing the one-off “reconciliation fee,” the parents have given up their right to future legal action. Zhao, who was released on medical bail earlier this year, noted that “many families had no choice but to accept the meager settlement because they could not get a fair hearing in the courts.” [Ibid]

In a speech at Peking University last month, veteran legal scholar and reformer Jiang Ping expressed worries that “the emphasis on the principle of “stability overriding everything” could engender the “rule of man” instead of rule of law. “I often say that as far as the rule of law goes, there have been ups and downs in recent history,” he said. “Very often it’s one step backward and two step forwards.” The 81-year-old law professor warned, however, that in recent years, “it’s been one step forward and two steps backward.” “We have been retrogressing in the main, and this is a terrible phenomenon? For cadres such as Chief Justice Wang, a former police officer and CCPLA bureaucrat who has never attended law school, however, legal and judicial niceties pale in comparison to the CCP’s overwhelming imperative to nip all destabilizing agents in the bud. [Ibid]

Laws Making It Easier to Sue

The introduction of the Administrative Procedure Law laws in 1980 were passed that made it easier for ordinary people to sue. Revised laws in 1993 made it possible for ordinary citizens to sue the Chinese government. One of the first people to take advantage of the laws was a painter who was beaten up by police after arguing with a bus conductor. He won the suit but was later arrested by police on fabricated charges of bike theft.

These days more and more Chinese citizens are going to court to fight injustices. The New York Times described a man who sued police because he was imprisoned on trumped up charges of poisoning pig feed; a woman who was fired because her boss thought she was pregnant before marriage; and a man who was imprisoned on false charges of spiking a hot dish with opium. There have also been suits for defective products, wrongful injury and poor service on the trains.

There are books and websites even films and television shows that highlight court cases and offer legal advise. In some cases ordinary workers and farmers have become quite knowledgeable about the law as they have educated themselves to sort out their legal battle,

The number of suits brought under the law increased from 13,000 in 1990 to 100,000 in 1997. The number of civil cases doubled in the 1990s and jumped by a third between 1999 and 2000 and reached 4.3 million in 2004.

Relatively little has come from the suits. A legal scholar told the New York Times, “The number of people wanting to sue the government is large and growing. But the number of people who succeed in filing cases against the government is minuscule.”

Both businesses and individuals that feel they have been wronged in China and know they will get nowhere in Chinese courts have filed suits in Hong Kong hoping to get results there. Among those that have done this are the families of children poisoned by tainted milk in China in 2008. They have filled suits in small claims court against by Fonterra, a New-Zealand-based milk company registered in Hong Kong that has a stake in the Chinese milk company.

Successful Law Suits

In Henan Province the family of a small boy in who contacted AIDS through tainted blood won a lawsuit against the hospital where the boy was treated and a family won a suit against a police officer that killed their son while driving drunk.. In Sichuan a group of 2,164 peasants sued local officials for levying taxes in excess of the amount allowed by Beijing.

Farmers and peasant have fought unfair tax assessments and fouling of rivers by paper mills. In the town of Heze, the family of a young man who lost the ability to walk after doctors botched the treatment for broken leg sued the hospital where he was treated and won. The father of the young man led the fight and was helped by information he picked up from legal help hotlines.

In Shanghai, a number of homeowners have won judgments against developers and real estate companies for things like unfulfilled promising to have a house ready in a year and a lack of promised green space. Buyers are also hiring lawyers to draw up sophisticated contracts so they the things they are promised are in writing.

About twice as many people lose their suits as win. Many people who win law suits have difficulty claiming the damages they are awarded.

Unsuccessful Law Suits

U.S. firms have great difficulty suing Chinese companies. Some can’t even track down the companies they are suing to serve them papers. Suing in China involves navigating a tangle of red tape, obstructions and corruption. Winning suits outside of China is easier but difficult to collect damages if a suit is decided in the plaintiff’s favor.

One of the biggest problems is that Chinese companies that are sued are often partly owned by the Chinese government, army or local government and they can exert their influence in the local justice system. Most Chinese companies have no assets in the United States or other foreign countries, making it easy for them to avoid court orders because the American justice system has no leverage against them. There’s no treaty between the United States and China that requires them to honor each others legal judgments.

As of early 2008, international legal experts didn’t know of a single case in which Americans collected any money from a verdict or court order against a Chinese company although such companies have been paid through settlements.

Image Sources: Posters: Landsberger; Gang of Four, Ohio State University; Prostitute parade, AP

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, National Geographic, The New Yorker, Time, Newsweek, Reuters, AP, Lonely Planet Guides, Compton’s Encyclopedia and various books and other publications.

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© 2008 Jeffrey Hays

Last updated November 2012

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