IV. Legal Rule and Party Rule: A Deliberate Contradiction
China’s top leaders have acknowledged that greater demand for rights protection and many social protests are responses to local government abuses, and have promised to enhance access to judicial and administrative remedies, reiterating at every opportunity their commitment to the rule of law. In October 2007 President Hu Jintao pledged in his report to the 17th Party Congress to “build a fair, efficient and authoritative socialist judiciary system to ensure that courts and procuratorates [the Procuracy offices] exercise their respective powers independently and impartially in accordance with the law.”41 Premier Wen Jiabao has made many similar statements. In January 2006, he acknowledged that “some localities are unlawfully occupying farmers’ land and not offering reasonable economic compensation and arrangements for livelihoods, and this is sparking mass incidents in the countryside.”42 In March 2006, he promised “effective legal services and legal aid so as to provide effective help to people who have difficulty filing lawsuits,” and a “strict, impartial, and civilized enforcement of the law.”43 And in March 2007, he pledged to “do a good job … in providing legal services” and more specifically called on law enforcement agencies to “exercise their powers and carry out their duties in strict accordance with legally specified limits of authority and procedures” and “accept the oversight of the news media and the general public.”44 Yet despite the vigorous development of legal institutions over the past two decades, a basic contradiction remains: the Party pledges to operate under the primacy of the law, yet it insists at the same time on Party supremacy in all matters, including the law. The Constitution is defined as having “supreme legal authority,” but also enshrines the principle of the “leadership of the Communist Party.” Courts are supposed to adjudicate independently, but the Party opposes the idea of an independent judiciary. Power nominally resides in government organs, yet real power rests with the Party committees that shadow those organs at every level. State organs must carry out the paramount task of protecting “social stability” by offering legal remedies to protesters with legitimate complaints, but they must also suppress them if Party authority risks being undermined. In practice, this permanent contradiction greatly undermines the effectiveness of the formal legal entitlements of Chinese citizens. Their ability to exercise their rights—or turn to the courts if their rights are violated—remains subject to the arbitrary assessments of Party authorities. Combined with the traditionally extensive powers of the bureaucracy, this creates a high degree of legal uncertainty for plaintiffs. Some social grievances are determined as legitimate while others are seen as destabilizing and must therefore be suppressed. Some protests are tolerated, while others are quashed and their organizers imprisoned. Some environmental, labor, and social activists are tolerated or even encouraged, while others are suppressed and arrested. Some lawsuits against local governments are allowed, while others are proscribed and their initiators punished. In essence, when the larger goals of the party-state and the processes of a professional judicial system align, the system can function fairly independently. But when the Party decides that its political interests do not coincide with the administration of justice, rule of law considerations are suspended. Internally, Party and government authorities justify these shifts by the Party’s own ideological axioms about the need to protect Party rule and political expediency, such as “looking at the big picture,” “protecting social stability,” or “harmonizing legal and social results.” The determination process—in Party parlance, ding xing:“making a determination regarding the [political] nature of a situation”—is intrinsically political and arbitrary. It takes place outside of considerations for the integrity of the rule of law and relegates the role of the judiciary to a simple instrument of the Party. Similarly, appealing to “social stability” is the most common justification given by the government for politically motivated repression of perceived dissenters or critics. Officials often cite the “adverse consequences” of news stories for “social stability” as a reason for censoring media reports about social unrest or punishing news outlets and journalists for reporting on them.45 The cover-up of public health crises (such as the Severe Acute Respiratory Syndrome epidemic in 2003)46 or industrial accidents (such as the chemical spill in the Songhua River in November 2005)47 have also been justified by the need to preserve “social stability.” At every level, China’s key legal institutions are under the authority of the Party’s political and legal committees. Through these institutions, corrupt local power holders can easily instruct the police to abandon investigations, foreclose legal challenges, and dictate the outcome of particular cases to judges, or frame protesters and activists on vague charges of threatening state security and social stability. There are other structural factors that make it especially difficult for ordinary Chinese citizens to get access to justice. Legal institutions remain tightly controlled by state organs, the Party does not rely primarily on the judicial system to investigate corruption and wrongdoing of its members, many grievances are turned toward an ineffective petitioning system, and freedom of expression and the press remain highly constrained. The low status of the legal profession is particularly salient in relationship to the law enforcement and judicial organs of the state, colloquially referred to as the gongjianfa: the Public Security Bureau (Gong’an, the police), the Procuracy (Jianchayuan, the public prosecution), and the courts (Fayuan). Of these three institutions, the Public Security Bureau is by far the most powerful, as its minister is traditionally a member of the Political Bureau of the Central Committee, the most important part of the party-state.48 At the local level, the head of the Public Security Bureau is always a member of the Party Committee and generally the head of its powerful Political and Legal Committee in charge of legal affairs. The imbalance of power between state judicial institutions and the legal profession means that Chinese lawyers depend greatly on cooperation from the former to perform their duties. Standard procedures such as accessing court documents and evidence held by the investigating organs, filing a case in court, or meeting with a client in detention are in practice achieved only at the discretion of these institutions. The government has recognized the existence of these problems. In 2005, a task force from the National People’s Congress was formed to investigate difficulties faced by lawyers and report to the President of the Supreme People’s Court (SPC), China’s highest judicial body. Subsequently, the SPC acknowledged that “Certain courts and a small number of adjudicators and tribunal staff did not respect sufficiently the rights of lawyers and their role in litigation procedures, and sometimes violated their rights.” In March 2006, the SPC promulgated regulations calling courts to “earnestly implement the Law on Lawyers and protect lawyers’ professional rights.”49 But even lodging cases can be difficult for lawyers. Courts have a large degree of discretion in accepting cases, and frequently apply political and legal criteria in determining whether to accept cases.50 Courts are often instructed by Party or government authorities not to take up certain cases or category of cases.51 For instance, residents in Beijing have reported that the courts were instructed not to take up cases of residents forcibly evicted for urban redevelopment.52 The court structure is also an impediment to meaningful participation of lawyers. Under the current system, cases deemed important or “especially complicated” are internally decided by “adjudicating committees [shenpan weiyuanhui],” composed of senior judges and judges who are often members of the Party’s Political and Legal Committee in charge of legal affairs.53 Judges are then bound by the decision of the adjudicating committee. Lawyers do not participate in adjudicating committee meetings and cannot have their views represented there.54 Corruption is also an obstacle to obtaining justice.55 A corruption case in 2004 in Wuhan, one of the largest courts in the country, exposed a sophisticated scheme of corruption within the court system and showed how multiple levels of judges and administrators were able to form circles of mutual benefit and profit. Rewarded activities in this system of bribe extraction included “taking bribes from the plaintiff and the defendant [chi yuangao, beigao],” “manufacturing court cases [zao jia an],” “selling evidence of the court case [mai zhengju],” “receiving kick-backs for passing cases [chi huikou],”“abusing the power of judges to order suspension of businessoperation or confiscation of property [lan zhixing],”“demanding commissions for making beneficial judgment [gao youchang fuwu],” and “embezzling court funding [tanwu nuoyong zhixing kuan].”56 In 2006, a total of 292 judges across the country were found to have abused power for personal interests, and 109 of them were prosecuted and sentenced. Retrenchment: The campaign for “socialist rule of law”In April 2006, the authorities launched a large-scale political campaign for “education in socialist rule of law concepts [shehuizhuyi fazhi li’nian jiaoyu],” aimed at “strengthening and improving the Party’s leadership over judicial work” and emphasizing the difference between “socialist rule of law” and “Western rule of law.” The campaign was introduced by a landmark speech by Luo Gan, a senior member of the Politburo and the head of the Party Central Committee’s Legal and Political Committee (the highest policy-making authority in legal matters),57 on April 11, 2006. Luo announced an initiative to the strengthen the leadership of the Party over the courts, curb liberal ideas about greater independence for judges and lawyers, oppose the “infiltration” of the judiciary by unspecified “hostile foreign forces,” and shift collective litigation from the judiciary towards the mediation system. He also urged tighter control over legal activists, in particular the weiquan movement. Specifically, he urged the adoption of “forceful measures … against those who, under the pretext of rights-protection [weiquan], carry out sabotage … so as to protect national security and the political stability of society.”58 Although the leadership role of the Party and the need to ward off threats to political stability are common themes in CCP rhetoric, this speech marked a departure from earlier policies and practices regarding the gradual professionalization of the judicial system. A set of political instructions directed at judges in a provincial court shortly after the launch of the campaign illustrates the retreat from increased professionalization of the courts:
Another target of the campaign was the judges’ desire for greater judicial independence. In the same court document cited above, the Party Committee instructed court cadres to “respect political discipline”:
In October 2007, a speech from the president of the People’s Court, Xiao Yang, reiterated the importance of the shift from judicial independence to Party leadership: “The power of the courts to adjudicate independently doesn't mean at all independence from the Party. It is the opposite, the embodiment of a high degree of responsibility vis-à-vis Party undertakings.”61 In contrast with the repeated claims that the courts must uphold “justice, [and] fairness, [and] base their decisions on the law only and serve the public,” these instructions are clearly designed to make the judiciary even more subservient to the Party. The socialist rule of law education campaign was also marked by the imposition of additional restrictions on lawyers handling collective cases and by a renewed crackdown on weiquan legal activists. A few weeks before the formal announcement of the campaign, the government imposed new limitations on the legal profession by adopting regulations that significantly hinder the ability of lawyers to represent collective cases and protesters.62 The “Guiding Opinions on Lawyers Handling Mass Cases,” promulgated through the All-China Lawyers Association, cited the need to maintain “stability” as a reason for their promulgation. They referred to the “major impact” that land seizures, forced evictions, relocations from dam areas, and lays-offs resulting from state-owned enterprise restructuring—precisely the kinds of problems that give rise to “mass cases”—can have on “the country’s stability.”63 In essence, the Guiding Opinions made clear that political considerations were paramount and that lawyers must act as auxiliaries of the judicial bureaus when handling politically sensitive cases involving protesters.64 The regulations were widely perceived as suppressing weiquan lawyers, who had been representing many collective cases. At the same time, the government’s hostility towards the weiquan movement was reflected in the arrest and conviction of three of its most outspoken members, Chen Guangcheng, Gao Zhisheng, and Guo Feixiong. All three men had been providing legal advice to protesters and plaintiffs suing government authorities—Gao as a qualified lawyer, Chen and Guo as legal advisers (under Chinese law, it is not necessary to be a qualified lawyer to represent a defendant, including in criminal trials).65 The socialist rule of law education campaign also signaled tighter overall controls over the legal profession. In September 2006, the vice-minister of justice in charge of the administration of lawyers, Zhao Dachen, called for “strengthening the management” of the legal profession and guarding against neglecting “the essential attribute of the socialist legal worker.”66 The vice-minister openly stipulated that lawyers consider not only the legal results but also the “social result” of their work, so as to “build a high quality corps of lawyers that reassures the party and makes the people content.” The speech also called for “purifying the thinking” of judicial workers, and imparting to “the teams working on the administration of lawyers and the lawyers at large to ‘ideological education.’” It sternly criticized judicial officials who neglected the “political attributes” of legal professionals:
The vice-minister also warned against “ignoring national conditions” when copying foreign legal practices:
In November 2006, Wang Shengjun, Secretary of the Political and Legal Committee of the Party, warned lawyers about opposing the Party:
In February 2007, warnings about the subversive character of foreign legal concepts were even more explicit in a new landmark speech by Luo Gan, the head of the Political and Legal Committee, and published in Seeking Truth, the theoretical journal of the Central Committee. Luo Gan’s speech urged legal organs to guard against “hostile forces (who) have been trying their best to attack and fundamentally transform our judicial system.”70
Luo nevertheless acknowledged that social unrest had legitimate causes. In some protests, participants had no direct interest in the cause but were venting accumulated anger, he said, adding that judicial departments should “reflect on this phenomenon” and “safeguard social justice and fairness.”72 Yet, the crackdown against rights activists continued. In August 2007, the Ministry of Justice ordered the dissolution of the Beijing Bar Association’s Constitutional and Human Rights Committee. The committee, established in 2001, was known for its progressive stance and counted several high profile public interest lawyers as members.73 On October 28, 2007, the government passed the long-awaited revisions to the Law on Lawyers,74 a move state media hailed as designed to “make life easier for lawyers.”75 But two days later, on October 30, in an important speech pronounced at the closure of a training session on “Socialist rule of law concepts” held by the All-China Lawyers Association, Vice-Minister of Justice Zhao Dacheng ruled out greater independence for the legal profession, stressing to the contrary the need to further control the work of lawyers as a way to diffuse social unrest. “Lawyers must guard against the concept of mere professionalism, and carry out in their work the unification of legal and social results,” Zhao said.76
In essence, “harmonizing legal and social results” requires that lawyers tailor legal solutions to what the Party thinks best serves social stability. Against this highly politicized background, lawyers in China face huge obstacles in defending citizens whose rights have been violated. Yet, more and more lawyers are taking such cases, encouraged by profound social dynamics such as rising rights awareness among the populace, repeated expressions of commitment to the rule of law by the authorities, support from legal professors and experts, the growth of a professional culture among judges, prosecutors, and legislative drafters, and, at least for some, the high social status lawyers enjoy when they are commercially successful. 39 Luo Gan, “The Political and Legal Organs Shoulder an Important Historical Mission and a Political Duty during the Construction of a Harmonious Society,” Seeking Truth, Issue 448, February 1, 2007 [罗干, “政法机关在构建和谐社会中担负重大历史使命和政治责任,” 求是, 2007-02-01 (总448期)], http://www.qsjournal.com.cn/qs/20070201/GB/qs%5E448%5E0%5E1.htm (accessed March 6, 2007). See also: Lindsay Beck, “China Urges Judiciary to Handle Unrest Better,” Reuters, February 2, 2007; Joseph Kahn, “Chinese Official Warns Against Independence of Courts,” The New York Times, February 3, 2007. 40 “A correct concept of judicial authority is the proper meaning of rule of law,” China Court Daily, February 21, 2008. [“正确的司法权威观是法治的应有之意,” 中国法院网, 2007-10-18], http://www.chinacourt.org/html/article/200710/18/270093.shtml (accessed February 21, 2008). 41 Hu Jintao, “Hold High the Great Banner of Socialism With Chinese Characteristics and Strive for New Victories in Building a Moderately Prosperous Society in All Respects: Report to the Seventeenth National Congress of the Communist Party of China,” October 15, 2007 [“高举中国特色社会主义伟大旗帜 为夺取全面建设小康社会新胜利而奋斗━在中国共产党第十七次全国代表大会上的报告胡锦涛在中国共产党第十七次全国代表大会上的报告,” 2007-10-15], http://news.xinhuanet.com/newscenter/2007-10/24/content_6938568.htm (accessed October 24, 2007). English version available at http://www.chinaelections.org/en/readnews.asp?newsid={3923CAAD-3248-47C5-A579-BE5DA4091C6C}&classname=News%20Highlights (accessed October 24, 2007). 42 “Chinese PM Warns on Rural Unrest,” BBC News Online, January 20, 2006, http://news.bbc.co.uk/2/hi/asiapacific/4630820.stm (accessed January 21, 2006). 43 “Text of Chinese premier’s government work report at NPC session,” BBC Monitoring Asia Pacific, March 5, 2006. 44 Report on the Work of the Government delivered by Premier Wen Jiabao at the Fifth Session of the Tenth National People's Congress on March 5, 2007, http://english.gov.cn/official/2007-03/16/content_552995.htm (accessed June 19, 2007). 45 See, for example, “China: Journalists imprisoned after reporting on land disputes,” Committee to Protect Journalists, January 19, 2006; Kristin Jones, “China’s Hidden Unrest,” Committee to Protect Journalists, May 2006. 46 Brad Adams (Human Rights Watch), “China’s Other Health Cover-up,” commentary, The Asian Wall Street Journal, June 12, 2003, http://hrw.org/english/docs/2003/06/12/china12938.htm. 47 Beijing waited until 10 days after the incident to tell the public about a factory explosion that dumped 100 tons of benzene and other chemicals into northeastern China’s Songhua river. “China’s PR problem,” Los Angeles Times, December 13, 2005. 48 By contrast, neither the President of the Supreme People’s Court nor the President of the Supreme People’s Procuratorate are members of the Political Bureau. 49 “Supreme People’s Court Notice Regarding the Earnest Implementation of the Law on Lawyers and the Lawful Protection of the Professional Rights and Interest of Lawyers in Legal Procedures,” March 13, 2006 [最高人民法院关于认真贯彻律师法 依法保障律师在诉讼中执业权利的通知, 2006-03-13.] 50 According to a professional guide on Case filing procedures: “The merits of the case by the Courts must be measured against two criterions: (1) legal criteria: whether it falls within the scope of laws and regulations … (2) political criteria: for questions that involve national defense, foreign relations, state interest and other matters that go beyond the scope of the power of the judiciary and are not suitable to be adjudicated by the courts, cases should not be accepted. This is dictated by the place of the courts (….) in the political system.” Huang Lirong, “Legal Theory Considerations on the Standards of Case Filing in Civil Litigation,” Case-filing Office of the Supreme People’s Court, ed., Guide on Case-Filing , Beijing: People’s Court Publishing House, November 2004 (China Trial Guide series) [黄立嵘, “关于民事立案标准的法理思考,” 载 最高人民法院立案厅 编: 立案工作指导, 北京: 人民法院出版社, 2004-11 (中国审判指导丛书)], pp. 89-91. 51 For instance, a regulation issued by the Supreme Court in 2002, for instance, provides that the “Peoples’ Courts should not accept civil lawsuits from plaintiffs if they concern disputes that have arisen during the course of State-Owned Enterprises reforms carried out by responsible government departments.” Supreme People’s Court of the People’s Republic of China: Regulations on various problems regarding the hearing of cases of civil dispute arising in enterprise reforms,” effective January 1st, 2003, article 3. 52 See for instance Jerome A. Cohen, “China’s Legal Reform at the Crossroad,” The Far Eastern Economic Review, March 2006, pp. 23-27. Cohen notes that “[i]n too many cases, plaintiffs with justifiable legal grievances are simply denied access to the courts by one means or another.” 53 According to article 149 of the Criminal Procedure Law, “difficult, complex or major” cases can be referred to the president of the court to decide to submit the case to the judicial committee for “discussion and decision.” The collegial panel “shall execute the decision made by the judicial committee.” 54 On the role of the adjudicating committees see “New trends for the reform of the Adjudicating committees,” Dongfang Fayan (www.dffy.com), May 15, 2005 [“新形势下审判委员会的改革,” 东方法眼, 2006-5-15], http://www.dffy.com/faxuejieti/ss/200605/20060515203809.htm (accessed April 5, 2008). 55 Work Report of the Supreme People’s Court, March 10, 2008 [ 最高人民法院工作报告, 2008-03-10], http://law.southcn.com/lfdt/content/2008-03/25/content_4361035.htm (accessed April 7, 2008). 56 “The alliance of corrupted judges,” China Newsweek, April 19, 2004. [“法官的腐败同盟,” 中国新闻周刊, 2004-04-19.] See also “The Wuhan Court Bribery Case,” China Rights Forum, No. 1, 2005, pp. 30-32, www.hrichina.org/public/PDFs/CRF.1.2005/1.2005TheWuhanCourt.pdf (accessed November 2, 2007). 57 At the 17th Party Congress in October 2007, Luo Gan retired under the Party’s age limit rules and was replaced by the former Minister of the Public Security, Zhou Yongkang, as a member of the Politburo Standing Committee of the 16th CPC Central Committee as well secretary of the CPC Political and Legislative Affairs Committee of the CPC Central Committee. 58 Luo Gan, “Bolstering the teaching of the concept of socialist rule by law: Conscientiously strengthening the political thinking of the political and legal ranks,” Seeking Truth, Issue No. 433, June 16, 2006 [罗干, “深入开展社会主义法治理念教育切实加强政法队伍思想政治建设,” 求是, 2006 年6 月16 日(总433 期)], http://www.qsjournal.com.cn/qs/20060616/GB/qs^433^0^1.htm (accessed October 16, 2006). 59 Huang Jiayou, “Considerations on some issues related to the education in socialist rule of law viewpoints,” China Laws (http://www.lawbase.com.cn ), June 13, 2006 [黄家由, “社会主义法治理念教育若干问题思考,” 国法律资源网, 2006-6-13 ], http://www.lawbase.com.cn/law_learning/lawbase_@1486.htm (accessed November 2, 2007). The author is identified as the Head of the Political department of the Party Committee of Zhaoxing Municipality’s Intermediate Court, Zhejiang Province. 60 Ibid. 61 “A correct concept of judicial authority is the proper meaning of rule of law,” China Court Daily, February 21, 2008 [“正确的司法权威观是法治的应有之意,” 中国法院网, 2007-10-18], http://www.chinacourt.org/html/article/200710/18/270093.shtml (accessed February 21, 2008). 62 The Guiding Opinions and their background is detailed in Human Rights Watch, “A Great Danger for Lawyers”: New Regulatory Curbs on Lawyers Representing Protesters, vol. 18, no. 15(C), December 2006, http://hrw.org/reports/2006/china1206/. 63 Human Rights Watch, “A Great Danger for Lawyers”: New Regulatory Curbs on Lawyers Representing Protesters. 64 The Guiding Opinions introduced specific requirements for mass cases that do not exist for other types of cases. For example, the Guiding Opinions require that at least three partners in the law firm sign off before a lawyer accepts a mass case, demand that lawyers report to government departments when disputes intensify, and mandate that lawyers exercise “caution” in their contact with the media and with foreign organizations. Since the adoption of the Guiding Opinions, lawyers involved in sensitive cases have privately confided that they have come under pressure from their employers or other partners in the firm to stop doing work that may potentially jeopardize business. Several provinces and municipalities since adopted similar regulations, which in many cases are even more restrictive. Human Rights Watch, “A Great Danger for Lawyers”: New Regulatory Curbs on Lawyers Representing Protesters. 65 Article 32 of the Criminal Procedure Law allows “persons recommended by a public organization or the work unit the defendant belongs to, and their guardians, relatives and friends” to represent a defendant. 66 Zhao Daocheng, “Several Issues relating to the Administration of Lawyers,” Justice of China, November 2006 [赵大程, “关于律师工作的若干问题,” 中国司法, 2006-11], pp. 9-14. 67 Ibid. 68 Ibid. 69 “Interview of Wang Shengjun, Secretary of the Political and Legal Committee,” Legal Daily, November 24, 2006 [“访中央政法委秘书长王胜俊,” 法制日报, 2006-11-24], http://www.chinapeace.org.cn/misc/2006-11/24/content_7083.htm (accessed November 4, 2007). 70 Luo Gan, “The Political and Legal Organs Shoulder an Important Historical Mission and a Political Duty during the Construction of a Harmonious Society,” Seeking Truth, Issue 448, February 1, 2007 [罗干, “政法机关在构建和谐社会中担负重大历史使命和政治责任,” 求是，2007-02-01 (总448期)], http://www.qsjournal.com.cn/qs/20070201/GB/qs%5E448%5E0%5E1.htm (accessed March 6, 2007). See also: Lindsay Beck, “China Urges Judiciary to Handle Unrest Better,” Reuters, February 2, 2007; and Joseph Khan, “Chinese Official Warns Against Independence of Courts,” The New York Times, February 3, 2007. 71 Ibid. 72 Ibid. 73 “Dissolution of a lawyers rights protection organization in Beijing,” Radio Free Asia (Mandarin Service), August 14, 2007. [“北京律师维权组织犯禁被撤,” 自由亚洲电台, 2007-08-14], http://www.rfa.org/mandarin/shenrubaodao/2007/08/14/lawyers/ (accessed November 5, 2007). 74 Law on Lawyers of the People’s Republic of China, adopted May 15, 1996 (last revised October 28, 2007, effective June 1st, 2008) [全国人民代表大会常务委员会:《中华人民共和国律师法》(2007年10月28修订后) 2008年6月1日起施行], http://www.chinanews.com.cn/gn/news/2007/10-28/1061502.shtml (accessed November 2, 2007). 75 The revisions to the Law on Lawyers and their likely impact are discussed throughout this report. “China amends law to make life easier for lawyers,” China Daily, October 28, 2007, http://www.chinadaily.com.cn/china/2007-10/28/content_6211922.htm (accessed November 5, 2007). 76 “Closure Speech by Vice-Minister Zhao Dacheng at the All-China National Lawyers Association training in socialist rule of law values,” October 30, 2007 [“ 赵大程副部长在全国律师社会主义法治理念培训班结束时的讲话,” 2007-10-30.] 77 Ibid. |