Uncertainty in China’s Legal Development, Part 2: Reforming the Courts
By Stanely Lubman, The Wall Street Journal, China Real Time Report
Stanley Lubman, a long-time specialist on Chinese law, looks at limitations on judicial reform in China. 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).
Many foreign and some Chinese observers agree that the Chinese court system is deficient, most obviously because judges lack independence and the courts are subject to numerous external influences. The opaqueness of the courts makes it difficult to assess the extent of the pressures on them. The Party-state’s policies that affect the courts are not uniform and the goals of reform are unstated. China’s law reformers are unsure about the extent to which Western models can be followed, or whether the judicial system can be shaped to reflect Chinese conditions while also meeting objective standards of justice. The future of Chinese law reform is highly uncertain, and the odds of meaningful reform in the near term are low.
Policy has aimed at improving the ability of the courts to resolve the social and economic issues that have been multiplying as a result of China’s extraordinary transformation. Columbia Law School Professor Benjamin Liebman notes that the judiciary has become better educated and more professionalized since 1995 (see China’s Courts: Restricted Reform). There has been some movement toward depoliticization, reflecting a “modest attempt by the courts to shift from being a tool for enforcing Party policy to being a neutral forum for dispute resolution.” Some innovation has appeared in “politically safe” cases in which outcomes “are usually consistent with the interests of important party-state actors.”
Serious problems remain. Liebman terms judicial reform “restricted,” by limits on judicial independence. Intervention “continues to be a legitimate action by Party officials,” not only in politically sensitive cases, but in some “involving the financial interests of the party-state, powerful individuals or high profile companies, as well as cases involving a large number of plaintiffs and those receiving media coverage.” In addition, there is the frequent difficulty of enforcing decisions.
New pressures on the courts originate from the media, from protests, and from petitions, of which almost four million reached the courts in 2005. Activist lawyers, especially when their lawsuits generate unwelcome publicity, add to the pressures.
The Party-state wants the courts to act as safety valves, both to bring grievances to the attention of officials as well as to obtain remedies for the violation of rights. The courts respond to concern for social stability, but as government agencies they also contribute to strengthening the overall capability of the Party-state to expand its abilities to resolve grievances and deal with abuses, all within Party oversight.
Recently, reform has taken a step backward, with a return to an emphasis on cultivating popular support for the courts that echoes pre-1949 Maoist techniques of administration. Current policy emphasizes building a “harmonious society” as a means of addressing growing disaffection among Chinese who are frustrated by the inequities and social dislocations that have appeared. This has been manifested in preferring mediation to adjudication as the most desirable method of handling disputes. The Supreme People’s Court announced in 2007 that civil trials should be conciliated “when possible,” adjudicated “when necessary,” and combining the two to “solve” the disputes that provoked the litigation. Since then, the percentage of cases ended by mediation rather than court decision has risen. This policy may encourage judges who would prefer to mediate for other reasons: They are subject to discipline for legal errors, sometimes simply if higher courts reverse cases on appeal, so if they mediate cases concluded by a written agreement between the parties, they do not have to write legal opinions that might raise questions.
Normal legal procedures are sometimes abandoned to gain popular support for the courts when disputes erupt into protests. One study of policy on dealing with labor protests tells of how the courts in Guangdong may be ordered to take to the streets and help negotiate settlement of wage disputes without using formal legal procedures. (Yang Su and Xin He, Street as Courtroom: State Accommodation of Labor Protest in South China.)
Populism is reflected also in revival of the Maoist propaganda technique of popularizing model officials. A campaign to emulate a model judge was launched in January 2010: She was extolled for linking her accomplishments to Party policies such as Party supremacy, preventing petitions from being sent to higher levels, and emphasizing mediation and resolving disputes “proactively,” rather than ”disposing of cases on technical grounds.”
In the face of the complex situation of the courts and the political environment in which they operate, how relevant to Chinese court reform are Western standards of the rule of law? Some scholars, foreign as well as Chinese, argue that China must go its own way, following a path that does not — at least for the present — aim at creating courts that are as independent as they are supposed to be in Western democracies. But what might that path be?
Continued Party dominance is one obvious scenario. Zhu Suli, Dean of the Beijing University Law School, argues that “There are no other institutions or political forces capable of overseeing China’s drive to modernization and overcoming conflicts of interests and other political economy obstacles that cause so many developing countries to falter once they reach the middle-income stage.” (“The Party and the Courts,” Judicial Independence in China: Lessons for Global Rule of Law Promotion, 63, Randall Peerenboom, ed., Cambridge U. Press, 2010)
Professor Shen Kui of the Beijing University Law School agrees with Liebman that reform has been “restricted” and that “judicial reform has not yet brought about any significant change in the position or role of courts in China’s political system.” But, he notes, China has aimed not at such change, but rather has sought to improve the efficiency and fairness of the system, and in that regard reform has been “modestly successful.” Ultimately, however, Shen argues that judicial reform must be viewed as linked to political reform, even while acknowledging that the goal of such reform is unclear.
Shen is correct in emphasizing that judicial reform can only go forward in the context of broader political reform, but he does not address the simple fact that the CCP’s drive to modernize is inextricably linked with the Party’s desire to maintain its control over Chinese society and the power that it exercises. An independent judiciary, in the Western sense, has so far explicitly been viewed as inconsistent with that basic political goal.
At the same time, some Chinese argue in terms familiar to Western observers. One recent article (in PDF here) notes that current policy treats the judiciary as “just as a government tool” dedicated to “safeguarding social stability and supporting government.” On the contrary, the same article argues, the aim of policy should be to “ensure the independent, just and authoritative functioning of the justice system so that civil rights can be guaranteed.”
At this point, it seems safe only to predict that foreign models and principles (such as judicial independence and emphasis on procedural justice) will continue to compete with institutions and values associated with China’s pre-revolutionary culture and traditions (such as mediation and emphasis on substantive outcomes) as well as with post-1949 developments. In the face of conflicting policies, the constricted space for meaningful judicial reform, the pace of change in China today, and the determination of the Party to preserve the party-state, we can expect only limited experimentation.