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Chinese Law Reform on the PRC's 60th Birthday

By Stanley Lubman, The Wall Street Journal

China Real Time Report is pleased to bring you commentary on important issues of the day from leading experts in their respective fields. We kick off with Stanley Lubman, a long-time specialist on Chinese law, who surveys the state of Chinese legal reform after 60 years of Communist control. Mr. Lubman teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).


When it comes to legal reform in China, Western observers should adopt an attitude of cautious pessimism. Although political reform is needed to accelerate legal reform that would make government and the Party truly accountable, the Chinese leadership presently lacks the political will to press for energetic legal reform; in the meantime, too, Chinese legal culture can change only slowly.


Legal reform, a project that has been ongoing, albeit erratically, for some years, has had to yield to the leadership’s current policy, which emphasizes the building of a “socialist harmonious society” in order to respond to threats to “social stability”. Popular protests have multiplied in recent years to express growing discontent with the inequities produced by rapid GDP growth, the lack of a social safety net and widespread corruption. Recently, protesters from outside Beijing were prohibited from coming to the capital to complain about alleged local violations of law.


Anger at violations of rights stimulates changes in popular legal culture. Ordinary Chinese people are increasingly asserting rights promised by the Chinese Constitution and a variety of laws and policies, and activist lawyers have used lawsuits to obtain redress for victims of gross violations of law. However, lawsuits have been discouraged and the courts have been ordered not to accept them, especially when they involve large-scale and publicized problems. One example was the sickness of hundreds of thousands of Chinese infants poisoned by impurities in milk powder, and another is the alleged violations of school construction standards that may have increased the numbers of deaths of children in the Sichuan earthquake last year;.


Local or national officials have long exerted their influence to pressure courts to reach favored outcomes regardless of legal factors. Additionally, in recent years the leadership has also strongly articulated policies urging judges to mediate cases rather than adjudicate them, thereby weakening the force of legal rules. In an article by Professors He Xin of Hong Kong University and Yang Su, of the University of California (Irvine), the authors describe how, in a district of Guangzhou, if workers involved in a labor dispute become angry and take to the streets because they are frustrated at the slowness of arbitration proceedings or the abandonment of a factory by the owners, the courts have been instructed to bypass normally rigid procedures to facilitate a solution that will encourage the workers to cease their protests and leave the streets, even bringing in other government agencies to pay workers (full article available for download here). Consistent with this, in early September the People’s Daily reported that judges are going to receive “training” in dealing with social unrest; no details were offered.


Ambiguities in policy toward law are clear: The Chinese Communist Party has never accepted judicial independence as an official goal. Its chief priority for the last thirty years has been economic development, which is the most important basis for its legitimacy, and preventing the occurrence of political or social events that threat that legitimacy.


At the same time, the leadership has promoted the increased professionalization of the judiciary and allowed more space for the growth of the legal profession. It has allowed some expansion in civil society, notably favoring the growth of non-governmental organizations concerned with environmental issues. It has recognized the need to make government more transparent, as shown by the adoption of Open Government Regulations last year and increased experimentation with expanding public participation in legislation and administrative rule-making. Changes in property law are being considered that would expand the rights of peasant landholders and urban residents and limit unlawful expropriation by local officials acting in concert with property developers.

The concern for maintaining social stability, however, currently outweighs any desire for legal reform, except to the extent that law and the courts may be used to punish and discourage official corruption. After the latest plenary session of the Central Committee of the Party concluded, the official communiqué stated bluntly that many problems “are severely weakening the Party’s, creativity, unity and effectiveness in dealing with these problems” and harming ties between the Party and the people. These perceived difficulties currently preempt the leadership’s attention, and further meaningful reform of legal institutions will necessarily have lower priority.


Although sixty years have passed since the founding of the PRC, only thirty years have elapsed since meaningful law reform was undertaken, and much has been accomplished: The courts, the bar, legal education, and the very idea of a legal system, all cast aside during the Cultural Revolution, have become presences in Chinese society. There is interest within and outside the Party in accomplishing further, top-down legal reform, and pressure for bottom-up reform is likely to grow from an increasingly more vibrant Chinese civil society. How long China, and we, must wait, it is impossible to predict.

10/29/2009