By Stanley Lubman, The Wall Street Journal
China’s Communist Party made two major announcements on Tuesday night: The first revealed that former security czar Zhou Yongkang was being investigated for “discipline violations.” The second, related to the first, was that rule of law would be the focus of the party’s annual conclave in October. The reputation and legality of China’s police, courts and prosecutors suffered during Zhou’s tenure as head of the country’s security apparatus. Legal reform plans already put on the table could help China to move past the Zhou era.
Earlier this month, Beijing released a 45-item list of legal reform goals, a significant aim of which is to reduce the influence of local government on local courts. Such an aim may seem modest, but if successful, it would mark an important step in addressing the weakness of rule of law in the country.
In China’s rural counties and municipal districts, the so-called “basic-level” (local) courts are courts of first instance with jurisdiction over civil and criminal cases. As the official Xinhua news agency has noted, the finances and staffing of such courts are typically managed directly by the local government, “thus local officials can often influence court decisions in their jurisdictions.”
The influence of the local Party on local courts has long been criticized. The Vice-Secretary of the Shanghai Law Society, commenting to Xinhua on the recent launching of a judicial reform pilot project in Shanghai, said : “When the coin bags are held at the hands of the local governments, their independence will be affected, as they are prone to the lobbying of the local officials.”
Proposed reforms aim to reduce this local interference by giving provincial-level judicial bodies the power to nominate judges for the basic-level courts and by financing the lower courts out of provincial budgets.
The idea behind the reform is a good one that could go much to improve the Chinese legal system’s ability to deliver justice. Whether it will work very much remains to be seen.
Local protectionism is a systemic defect in China’s governance that has been difficult to control because it exists from the provincial level on down. It is so pervasive that it is not possible to know how provincial officials will respond to the reform or whether they will encourage or impede lower-level reforms.
Examples abound of provincial-level interference in legal disputes. They are particularly numerous in cases involving illegal land takings, with lower level courts often ruling in favor of the government even when evidence rests overwhelmingly on the side of the original occupants. Such dynamics appear to have played a key role in the famous uprising in the village of Wukan, in Guangdong Province, were locals literally chased Communist Party leaders out of town for illegally selling their land. According to one report, “Villagers started with the courts, moving from low-level county courts, up to provincial courts, and then petitioning government authorities. Some eleven court cases later, after failing to achieve any legal recourse, local citizens took the law into their own hands by taking to the streets.”
Another example of local protectionism, this one outside the courts, recently exposed the ability of provincial power to subvert national law and policy. After resisting repeated calls from Beijing to reduce steel processing capacity and shutdown polluting blast furnaces, officials from Hebei recently produced a video showing 15 blast furnaces in Hebei being blown up. The move was supposed to reduce the province’s annual production of pollutants by almost half. On further inspection, the furnaces that were destroyed turned out to be so obsolete that they were not even counted as contributing to excess capacity; in fact the province’s capacity was not reduced.
The resistance of local governments—both at the provincial level and below– to increased environmental regulation is so great that the last judicial reform plan includes a specific proposal for the establishment of special tribunals for environmental cases. Why? As He Jiaorong, the head of the legal reform office of the Supreme People’s Court, told state-run media, special interests have been “especially pronounced” when it comes to avoiding legal action on environmental grounds.
Because the provincial as well as local governments have been able to resist the impact of national laws and policies, it is reasonable to wonder whether provincial governments—once they receive control over the local courts— will seek to influence the outcomes of legal disputes in the same manner that local governments have done.
The pilot programs are too new to allow conjecture or predictions of how they will enable true law reform and if the judiciary’s adherence to promoting and fulfilling the rule of law might evolve. The principle of ruling China under law is stated in the country’s constitution and has been reaffirmed repeatedly, including by President Xi Jinping, but Party policy remains supreme in practice. The focus on local protectionism is significant because if successful, it could reduce a major obstacle to strengthening the rule of law without directly challenging Party supremacy. No one can expect quick progress on reducing local protectionism, but the fact that there is a stated desire to reduce the links between local governments and the operation of the courts is at least promising.