Citizen Rights and Police Conduct
By Stanley Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, 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).
A recent incident in central China dramatizes the severe contradiction between the government’s overriding concern for maintaining social stability and the anger of increasingly rights-conscious citizens.
The contradiction also reflects systemic problems of policing China that will continue in the foreseeable future, barring major reforms.
The right to petition is guaranteed by the Chinese Constitution, but in practice it is frequently violated, sometimes blatantly. Last month, six plainclothes police severely beat the wife of a Hubei provincial government official who was trying to enter a government building to see her husband. A Reuters report noted that the police mistook her for “one of many Chinese who petition government offices in the hope of redressing wrongs.” It added that the case “has become a hot topic among Chinese Internet users, highlighting the abuse that China’s armies of petitioners routinely suffer at the hands of police and hired thugs who wish to silence them.”
The Wall Street Journal account of the incident reported that the policemen apologized for their “mistake” because they “were not aware that we had beaten the wife of an important official.” The article reported that “this bizarre apology, suggesting that such beatings are OK if they aren’t administered to VIPs, triggered an avalanche of public denunciation.”
Clashes between law-enforcement personnel and Chinese citizens participating in frequent mass protests were among the major examples of police misconduct mentioned in the Annual Report to Congress for 2009, issued in April 2010 by the Congressional-Executive Commission on China, which reports annually to the U.S. Congress on a large range of trade and human-rights-related issues. The report noted a host of other problems of police illegality: abuse of police power in interrogating citizens, searching their homes, confiscating property, harassment of family members of dissenters, suppression of dissidents, extralegal detention and disappearances of citizens, and torture and abuse of detained persons.
Insight into causes of police illegality have been explored by foreign and Chinese scholars, among them Murray Scot Tanner and Eric Green, in “Principals and Secret Agents: Central Versus Local Control Over Policing and Obstacles to ’Rule of Law,’ in China”, in China Quarterly, September 2007. First, and of particular relevance to police conduct toward petitioners, the authors point out that the goals of policing are often “nebulous,” such as “maintain good social order” and “respect the rights of citizens.”
Every society confronts such tensions, but they are more acute in China, where ongoing economic and social change have slowly increased popular pressure for greater recognition of individual rights by the central and local governments. China’s authoritarian government is uneasy about what it views as social instability that threatens its rule. That unease is no doubt reinforced by an increase last year, according to the Congressional-Executive Commission on China report, in “group protests, petitions and riots.”
Second, the article focuses on another organizational issue, which arises from the distribution of power over police work among central and local authorities. The Ministry of Public Security in Beijing formally exercises “unified leadership” over the hierarchy extending from the capital downward to provincial, county and lower-level public security bureaus. At the same time, however, local Party and government officials have authority over implementation of Party policies and can also decide “important policy questions,” deployments of police and management of local security “incidents.” The overlapping lines of authority — vertical from Beijing, horizontal from local officials — critically affect control of the police.
In the words of the authors: “The many institutions intended to help central authorities control, oversee and monitor local policing actually provide weak control and oversight. These obstacles to central leadership create tremendous challenges to building rule by law in China.”
The beating incident mentioned above illustrates how local police may manipulate implementation of central government policy with an eye to protecting the local government from unwelcome criticism from Beijing. Central government concern to control “social instability” leads it to impose quotas on the number of petitioners who may protest violations of their rights in their localities by traveling to Beijing to complain to central authorities because they feel their local protests have been ignored.
This in turn provokes rough treatment of protesters by police. As one Chinese commentator has pointed out, “if there are many petitioners it is seen as meaning local society is unstable and local officials bear responsibility for ineffective governance.”
The beatings of petitioners or protesters — or even anyone like the official’s wife who was mistaken for a petitioner — only illustrates the conflicting goals of maintaining stability and citizen’s rights. Underlying that conflict, however, is the more basic ongoing tension between maintaining authoritarian rule and fostering economic development that will serve to increase the pressure among China’s citizens for expansion and maintenance of their rights, including protection against arbitrary government acts.
The manifestations of police illegality are pervasive examples of a failure in Chinese governance. For example, local public security bureaus often exercise discretion to exceed personnel quotas set in Beijing, sometimes by hiring private security companies. They frequently generate revenue illegitimately to make up for deficiencies in central financing by engaging in predatory collection of fines. Moreover, because central monitoring of public security is dominated by the local bureaus, incentives to report “faithfully” to Beijing are not strong. These are only illustrative — other examples abound.
How could this system of decentralized power over public security evolve? Tanner and Green conclude that rather than a “nationally uniform pattern” there will be “a variety of local patterns.” In many localities institutions conducive to the rule of law are not likely to appear. Although there may be “pockets” of “relative legality” in some large, relatively prosperous cities, “in localities where a small tight elite of Party leaders and local entrepreneurs collaborate to dominate state and economy,“ police and semiprivate “security companies” are emerging as “repressive, anti-labor” agents. They also suggest that in some areas alliances between police and criminal elements might be formed, as has happened in a few places such as coastal Fujian and Yunnan.
The gloomy analysis summarized here convincingly suggests that the behavior of local police is not effectively monitored and controlled by the center. It also points to a Party leadership that has hesitated to remedy well-known problems. Police illegality will remain a critical obstacle to the growth of the rule of law, and will continue to impair the right to petition, among others.