China legal reform promises cause for cautious optimism
The initial communiqué that emanated from China’s major meeting of top Communist Party leaders on November 12thfocused on economic reform and had little to say about the legal realm. That changed three days later when the Central Committee of the Chinese Communist Party released a 60-point “resolution” that announced two potentially significant legal reforms and provided more detail about additional reform targets.
While it’s only possible to gauge the transformation of rhetoric into action after the fact, I’m not alone in welcoming the new goals. I recently attended a long-planned meeting in Seattle of a group of specialists on Chinese law. The meeting began on November 14, and the mood was discouraged given the scarcity of references to legal institutions in the communiqué. By the next morning, however, the atmosphere shifted as details of the just-released resolution trickled in.
The resolution specifically mentions two potentially important reforms: abolition of the system of “re-education through labor” (in Chinese: laojiao) and a plan to move the courts and the procuracy (prosecutors) away from the influence of local governments.
Laojiao, initiated in 1957, is a system under which the police may send people to labor camps for up to four years without formal arrest or trial. Initially established to deal with recidivist petty criminals who would otherwise burden the courts, it has been extensively used to incarcerate “counter-revolutionary” dissidents, aggressive epetitioners, members of the Falun Gong religious movement and other persons deemed to present unwelcome political challenges to CCP rule. It has long provoked criticism by Chinese legal scholars, other advocates of legal reform and members of the public.
To a certain extent, China was already moving to abolish laojiao even before this month’s meetings. In a previous column I noted how knowledgeable Chinese I met with in May had said some of the offenses for which prisoners in the laojiao system were punished are being “decriminalized;” some inmates of the labor camps were simply being released, while drug addicts were being sent to special rehabilitation centers.
While the end of laojiao is a welcome development, however, there are concerns that the practice of incarcerating people outside the court system may continue under another guise. According to the Chinese I met with, some former laojiao inmates were being detained in special “study classes” (xuexi ban) for which there is no basis in Chinese law. Some offenders could be placed under the jurisdiction of “community corrections,” which are specifically mentioned in the resolution. In other words, the extent to which labor camps might continue to operate under different names remains unknown, and human rights advocates remain skeptical, with good reason.
A second legal reform specifically mentioned in the resolution is a call “to explore the establishment of judicial jurisdiction systems that are suitably separated from administrative areas.” The implied intention is to distance the courts from the influence of the local governments that finance them and frequently influence the outcomes of cases that might reduce the revenues of those governments. Reform advocates have argued for centralizing financing of the courts, but there has been no progress in that direction.
The resolution also expresses the need to “perfect case handling responsibility for presiding judges and collegiate benches, [and] let those hearing the case judge and those judging the case be responsible.” This suggests a decline in the use of adjudication committees within the courts, which without participating in trials have often had the last word in cases He Xiaorong, director of the Supreme People’s Court Judicial Reform Office, recently cautioned that this reform had to be premised on “the relative independent status of the court system and the professionalism of judges.”
There are additional potential reforms targeted. Under the rubric of “judicial protection of human rights” for example, the resolution states that it is necessary to “further standardize judicial procedures for detention, custody, asset freezing and dealing with assets involved in cases.” Correcting wrongful convictions is mentioned, as is observing existing rules against using torture and beatings to obtain convictions and the use of “illegal evidence” — violations recently highlighted by publicity around fallen Communist Party leader Bo Xilai’s two and a half year “smash the black” campaign in Chongqing. Further, it calls for reducing cases in which the death penalty could be imposed. Other suggested improvements include conducting open trials, standardizing punishment, parole and bail, improving legal assistance and supporting lawyers’ rights.
Notably, the focus of the resolution goes beyond these cryptic references to the judicial system and addresses nothing less than “using structures to manage power” in order to ensure that “power is locked up in a cage of rules” — although there is no indication of how that cage might be constructed. In a book I wrote on post-Mao legal reforms in 2000 , I described Chinese legal institutions as a bird trapped within the cage of CCP dominance. Clearly, that cage still exists but the resolution suggests that it might be incrementally enlarged.
It’s worth recalling that when then-President Jiang Zemin in 1999 called for “ruling the nation by law,” in the same breath he also quoted an ancient saying that called for “ensuring the long-term stability of the nation.” The tension today between rule of law and “maintaining social stability” remains unmistakable, and there is no doubt which of the two will continue to be heavily favored by the current Chinese leadership—at least for the moment.