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China’s Turn Against Law

This is the second of six Human Rights Watch-Commissioned commentaries by outside experts on the trajectory of legal reform in China.

Executive Summary

Political and legal reforms in China over the past three decades have dramatically improved channels for redress of citizen grievances. But over the past decade, central Chinese leaders have turned against many late 20th century legal reforms they themselves had pursued. This has undermined earlier state progress towards improving access to justice. It is also fanning the flames of social unrest.

Since the late 1970s, Chinese leaders have backed away from the Maoist economic, political, and ideological controls that they had used to govern the People’s Republic of China since its creation. In the following two decades, they attempted to build new institutions–centered on law, litigation, and courts–to resolve both civil disputes between citizens and administrative grievances against the state.

Citizen use of these channels boomed. Numbers of lawsuits surged. Rural residents appropriated new central slogans regarding the rule of law in their efforts to defend their interests. And a cadre of public interest lawyers emerged, adept at fusing legal challenges with savvy use of the media to challenge the abuses of local governments.

But in the early 2000s, Chinese authorities grew increasingly uncomfortable with these developments, faulting them for contributing to a rising wave of citizen protests and undermining one-Party control. As a result, they turned against earlier efforts to steer disputes into formal court channels, launched new political campaigns within the Chinese judiciary, and tightened repression of public interest legal activists.

These shifts have weakened protections for citizen rights that state authorities themselves attempted to build. They have led judges to abandon procedural and substantive legal norms in an effort to prevent disputes from rising to higher authorities. And they are increasingly driving Chinese citizens to conclude that the best chance for resolving their grievances lies not within the state legal institutions that have been gradually undermined, but rather in direct street action.

1970s-2000s: Three Decades of Reform

In the late 1970s, as China began the long climb out from the chaos of the Cultural Revolution, it remained marked by Maoist policies and practices dating from the 1950s.

Responsibility for resolving ordinary civil grievances fell to local mediation committees led by local Party authorities or community activists. Flexible norms and informal procedures governed their work. They were also highly politicized. Recalcitrant parties could be subjected to organized struggle sessions aimed at correcting undesirable behavior and transmitting the correct Party line through making a public example of them. Citizen rights were not emphasized.

Mechanisms for administrative redress faced similar constraints. Under the state-owned economy of the 1970s, authority over the allocation of jobs, housing, and other state resources remained concentrated in the hands of individual state enterprise or bureau leaders. Few outlets existed for employees seeking to bring complaints regarding abuse of power or unfair treatment.

Those who did seek to pursue grievances against state organs frequently resorted to petitioning xinfang (letters and visits) bureaus operated by higher-level Party and government authorities. Deeply rooted in historical Chinese traditions of appealing for redress to the imperial throne, xinfang bureaus provided ordinary citizens a channel to seek redress in an authoritarian system lacking an independent judiciary or open political participation. But, their main role was not to fairly and equitably resolve citizen complaints. Rather, central authorities employed these bureaus as general-purpose governance tools–allowing them to collect information on social problems and wayward local officials, to conduct Party propaganda among the masses, and to selectively intervene and handle some (but not all) individual citizen grievances as they wished.

Deng Xiaoping’s accession to power in 1978 resulted in a reversal of radical Maoist political policies. Numbers of petitions surged to record levels as millions of citizens thronged to national, provincial, and county governments, seeking to politically rehabilitate family members and address injustices accumulated over the prior decades. State authorities heavily relied on xinfang bureaus and petitioning channels to address these grievances. Requests to handle such “historical” grievances rose to some 80 percent of all petitions as of 1982.

But if Chinese leaders were willing to rely on such mechanisms in the name of temporary expediency, the searing experience of the Cultural Revolution led them to try to build alternative institutions to govern the country and resolve citizen disputes. For Deng, rules should not change upon the whim of an individual leader. Publicly promulgated laws (rather than internal Party dictates) offered the hope of more regularized governance. Professional judges seemed to promise that such rules would be applied in a fairer, more even-handed manner.

Legal change became a hallmark of the post-1978 reform era. Chinese authorities issued hundreds of new statutes and regulations, constructing a comprehensive framework of criminal, civil, and commercial law. They reopened law schools. During the 1980s, thousands of new graduates began to flow into the doors of courts, procuratorates, and other government legal bureaus emerging from the destruction of the Maoist era. In the following decades, authorities moved to further professionalize these organs. Legislative reforms in 1995 and 2001 made advanced degrees a prerequisite for new judges, prosecutors, and lawyers.

Consistent with these reforms, Chinese authorities also shifted the work of dispute resolution institutions. Official preferences for mediation by community activists gradually gave way to an emphasis on judicial adjudication according to law. Reforms in subsequent decades confirmed these shifts. 1990s evidentiary and procedural reforms pushed courts to adopt increasingly more formal proceedings.

Policies towards the bar shifted as well. The 1996 Lawyers Law changed the definition of lawyers from “state legal workers” to “legal practitioners providing legal services.” Over the course of the 1990s, state authorities fully privatized the legal profession, despite retaining ultimate Party and state regulatory control.

Chinese authorities also launched a wave of administrative law reforms. The 1989 Administrative Litigation Law gave citizens a limited right to challenge the actions of individual state officials in court. Other reforms, such as the 2003 Administrative Licensing Law and the 2007 Regulations on Open Government Information, sought to impose legal checks on the power of local authorities.

Shifts in official propaganda paralleled the above changes. By 1997, central authorities had adopted “rule by law” as a core Party slogan, writing it into the constitution two years later.

These changes led to a massive surge in the number of court cases. First-instance civil cases nationwide rose from under 1 million in the early 1980s to roughly 1.9 million in 1990, then to over 5 million in 1999.Consistent with the official preference for adjudicated decisions, percentages of such cases resolved through mediation declined through the last two decades of the 20th century, decreasing from around 70 percent in the early 1980s to roughly 30 percent in the early 2000s. Administrative suits against the government boomed as well, rising from zero in 1989 to around 100,000 in 2001.

As new dispute resolution channels proliferated, and “historical” grievances gradually receded, citizen petitioning of Party and government xinfang bureaus declined–at least initially. Numbers of petitions decreased steadily from the early 1980s until 1993.However, heightened social pressures generated by economic reform combined with state failure to deepen political and legal reforms (discussed below) to reverse these trends. Numbers of petitions surged dramatically in the 1990s, with state xinfang bureaus reporting over 10 million petitions per year by the early 2000s.

No clear separation existed between petitioning and legal channels. Ordinary citizens simply added complaints regarding violations of their legal rights under China’s rapidly proliferating statutes and regulations to a laundry list of accusations against local authorities (such as local corruption and abuse of power) in their petitions to Party and government xinfang bureaus. And Chinese courts themselves continued to maintain xinfang bureaus within their walls which received a wide range of petitions, ranging from appeals for social services and financial assistance to the persistent efforts of aggrieved citizens to overturn final court decisions.

Chinese legal reforms also encountered growing problems. State efforts to build a dispute resolution system centered on formal court adjudication by a professional judiciary meshed poorly with the realities of a rural China lacking in trained personnel. Further, the failure to deepen institutional reform meant that Chinese judges remained institutionally weak actors as compared with Party and government authorities. Courts experienced pervasive problems enforcing their verdicts, leading to an increase in violent confrontations with disgruntled citizens.

Such difficulties gave rise to growing practical disenchantment among both central Party authorities who had initially supported legal reforms and citizens who had sought to rely on new channels to resolve their grievances.Following years of explosive growth, administrative suits against the government plateaued after 1998. Similar trends showed up with respect to cases between citizens themselves. After reaching a peak in 1999, the percentage of first-instance civil cases resolved through adjudication declined over the following years.

Late 20th century Chinese legal reforms also led to increasing political pressures for deeper change. By 2000, a cadre of public interest lawyers had emerged, seeking to use newly issued statutes and regulations (coupled with savvy use of media pressure) to push for broader institutional reforms. In 2003, following scandals surrounding deaths of migrants in state custody, lawyers and citizen activists successfully prompted central authorities to abolish custody-and-repatriation, a national detention system of questionable legality. This success spurred activists to launch similar challenges in subsequent years to state discrimination against hepatitis victims, the lack of government transparency, and official censorship of the media.

Within the state bureaucracy, official emphasis on legal norms during the waning years of the 20th century also influenced government cadres. Idealistic young judges flowing out of Chinese law schools in the late 1990s and early 2000s were imbued with academic theories of constitutional supremacy imported from abroad. In 2001, when the Supreme People’s Court authorized a lower court to apply the (otherwise non-judiciable) Chinese constitution in the Qi Yuling case, many assumed that China’s constitutional moment had indeed dawned.

The Counter-Reaction

Contrary to earlier hopes, the past decade has witnessed a broad state counter-reaction against earlier legal reforms. Practically, government officials perceived that late 20th century reforms had contributed to escalating levels of social conflict. Politically, central authorities have voiced concern regarding the use of rule-of-law concepts to undermine Party rule.

Chinese authorities moved to crack down on the public interest lawyers who had attempted to use new legal channels to push for greater reform. In 2006, the state-controlled bar association issued rules restricting lawyers from participating in “mass” cases implicating the interests of large numbers of individuals. Subsequent years witnessed increased harassment and disbarment of many prominent public interest lawyers.In 2009, Chinese authorities raided and closed the offices of the Open Constitution Initiative, founded by the lawyers who had successfully pushed state authorities to abolish custody-and-repatriation 6 years earlier. Repression increased to new heights in the wake of the uprisings in the Middle East. During the spring of 2011, Chinese authorities launched a sustained crackdown, subjecting dozens of public interest lawyers and legal activists to house arrest and detention–and some to periodic “disappearances” or torture.

Party authorities also tightened their controls over state legal organs. In 2006, authorities launched new political campaigns in courts, and government bureaus reminded state employees of the supremacy of Party policy vis a vis legal norms. In 2008, central authorities nominated a political-legal functionary with no formal legal experience as the new head of the Chinese judiciary. In the wake of this move, a conservative chill descended over the court system. The new leadership of the Supreme People’s Court quickly moved to separate themselves from earlier reforms–for example, by formally announcing the withdrawal of the Qi Yuling decision.

China’s new judicial leaders also moved to reverse the late 20th century emphasis on court adjudication. They revitalized pre-reform mediation institutions and practices that had fallen into disuse. Outside the court system, Chinese authorities revived people’s mediation committees run by local villagers and residents committees. Within the judiciary, they steered judges to resort to mediation (rather than issuing decisions) as the preferred means to resolve disputes. This preference found itself expressed in new slogans, such as “mediation has priority, and trials should be fused with mediation (tiaojie youxian, tiaojie shenpan jiehe).” This official emphasis spilled over into criminal and administrative proceedings, notwithstanding the explicit bar on the use of mediation in the Administrative Litigation Law.

State authorities also began backing away from earlier efforts to professionalize the judiciary. They revived Maoist models of judging that emphasized a fusion of mediation, populism, and Party political work. Judges were no longer expected to wait passively for disputes to arrive at their doorsteps. Rather, they were called on to venture out into the countryside, proactively uncover latent sources of citizen discontent, and work to alleviate them before they festered into litigation. New model judge campaigns called for abandoning strict adherence to “cold” legal norms and “mechanical” procedures in favor of flexible standards and personal relationships with disputants.

Consistent with these new policies, Chinese authorities began to rework court recruitment channels. They perceived that 1990s-era efforts to increase hiring of recent university graduates holding advanced degrees in law had poorly served rural courts, which experienced difficulty attracting and retaining trained personnel. Starting in 2008, Party authorities significantly expanded special programs that selected demobilized military officers, provided them with intensive legal training, and dispatched them to serve as judges in rural counties. Officials viewed such personnel as better capable of handling thorny rural disputes than their purely academically trained peers.

All of the above shifts were intertwined with an increasing central emphasis on the need to uphold social stability (weiwen). Rapid growth in citizen petitions and protests led Party officials to apply strong pressure on local authorities to do everything in their power to ensure that “small problems do not leave the village, and large problems do not leave the township.” Mounting political concerns in the wake of the 2003-2005 “color revolutions” that toppled authoritarian regimes in Eastern Europe and Central Asia heightened state sensitivity to any signs of organized opposition. In response, central authorities facilitated a sweeping expansion of the Party political-legal apparatus overseeing domestic stability, significantly raising both its bureaucratic profile and levels of funding.

State security organs developed new mechanisms to handle the rising tide of social discontent. Some involved direct repression. Faced with top-down pressures to halt petitioners from making their way to central government bureaus with their complaints, local authorities recruited a range of security personnel (“retrievers”) to intercept them.Illegal detention facilities (“black jails”) proliferated in Beijing.Other state responses involved a range of soft repression. For example, authorities adapted earlier forms of Maoist social control to the task of controlling persistent petitioners. Authorities located vulnerable individuals in their familial networks (such as relatives holding public employment or receiving state benefits), threatened them with termination or loss of support, and pressed them into intervening with the desired target to halt their petitioning or protest activity.

Party authorities also developed new mechanisms to coordinate state responses to social protest. Under the rubric of “grand mediation” or “social stability risk assessments,” these systems brought together courts, police, and other state institutions to hash out responses to incipient signs of citizen unrest. They emphasized flexibility, rather than adherence to legal or procedural norms. Authorities might launch a coordinated effort to suppress the entirely legitimate grievances of a small group of aggrieved villagers standing in the path of a local development project. Alternatively, faced with concerted citizen resistance to a legally correct decision of the local court, they might decide to cave in and instruct relevant authorities to ignore the law, reverse the judicial order, and satisfy the demands of the masses.

Such policies have altered dispute resolution patterns in China in recent years. Since 2004, Chinese court authorities have reported massive increases in numbers of civil cases closed through mediation. And since 2006, central authorities have also reported dramatic decreases in the numbers of petitioners to central government xinfang bureaus.

Short-Term Stability, Long-Term Costs

Did Chinese authorities somehow find a magic bullet to successfully address the rising tide of civil and administrative grievances flooding into China’s courts and government institutions in the early years of the 21st century? No.

Rather, they took short-term measures that produced a surface veneer of increased social stability. But these have not only failed to address the underlying issues confronting the Chinese legal system, they are actually undermining what limited progress has been made since the early 1980s in establishing institutions to resolve citizen disputes according to law.

Since the early 2000s, central authorities have altered the career performance incentives facing local officials. Just like any large bureaucracy, Chinese Party authorities rely on a complex set of personnel assessments to determine who will be designated a model employee, who will be promoted, and who will be awarded salary bonuses at the end of the year. Naturally, this gives central authorities a tool to try to steer the lower levels of the Chinese state in accordance with the policy preferences of the day.

Consistent with the new official emphasis on preventing local grievances from mounting toward the center, Party authorities jacked up career sanctions facing local officials in the early years of the 21st century. Increasingly severe sanctions were brought to bear on local Party officials who experienced high volumes of petitioners leaving their jurisdictions to seek redress in Beijing. Local judges were presented with elevated ratios of cases that they were expected to successfully resolve through mediation or suffer negative salary and career consequences.

Some of the new state efforts held potential for helping improve dispute resolution systems at the local level. Mediation is one example. Late 20th century efforts to emphasize formal adjudication of citizen disputes had clearly run into institutional limits–such as the lack of trained personnel and the weak authority of local courts. Carefully reviving village mediation institutions, or permitting urban NGOs greater autonomy in handling citizen grievances, might help foster the development of alternative dispute resolution institutions with greater legitimacy.

Unfortunately, this has not been the thrust of recent reforms. Instead, heavy state reliance on top-down performance targets to implement new policies has generated a wide range of perverse effects.

Take domestic violence, for example. Over the past decade, Chinese authorities have made serious efforts to address entrenched social problems of spousal abuse and domestic violence. The revised 2001 Marriage Law explicitly bars domestic violence, rendering it grounds for divorce and allowing battered spouses to bring civil suits for compensation. A number of Chinese local courts have experimented with pilot programs allowing judges to issue protective orders to victims of domestic violence. Such reforms have not only provided women with a forum in which to raise complaints of domestic violence, they have also made judges more proactive in investigating them.

However, state efforts to promote judicial mediation have weakened these efforts. Precisely because of heavy career incentives to settle designated numbers of cases through mediation, there is strong pressure for judges to overlook or downplay blatant examples of spousal abuse in the rush to settle cases before them–even in courts designated as pilots for handling domestic violence complaints.

Increased pressure on local officials and judges to deal with petitions and protests has also weakened legal norms. Faced with street demonstrations by laid-off workers seeking back wages, some Chinese courts and judges respond by discarding the law entirely in their efforts to appease dissatisfied parties. This includes abandoning evidentiary and procedural norms, independently assisting workers to bring their grievances, or ordering unrelated parties (bearing no actual legal liability) to assume the burden of paying workers’ wages. In some cases, local judges simply pay off disgruntled parties out of the court’s own budget.

These examples reflect a broader trend–official social stability (weiwen) policies pursued over the past decade are steadily undermining China’s legal institutions and norms.

On one hand, central pressures to control dissent have pushed local authorities to abandon limited legal protections in favor of tougher policies of suppression. Courts are compelled to sacrifice putative procedural protections for citizen rights in the name of rapidly resolving disputes and preventing them from rising to higher authorities. Public security officials are pushed into monitoring and harassing public interest lawyers who seek to organize and channel citizen grievances into court and government channels. And Party authorities are driven to develop new extra-legal measures (such as black jails and extended residential detention) to repress persistent activists and petitioners.

But there is another side to this dynamic as well. Citizens themselves are increasingly driven to rely on alternative channels to uphold their rights. When farmers aggrieved by land seizures see the court doors closed to their complaints, they learn that formal legal institutions can offer little help. When legal activists see state authorities stifle the evolution of mechanisms for interpreting constitutional norms, they lose hope in gradual reform.

Further, many Chinese citizens believe that state sensitivity to the threat of organized social discontent offers them an alternative lever to press for redress of their grievances. Precisely because local officials face stiff career sanctions for outbreaks of petitions and protests, discontented citizens often view these as a preferred mechanism to get what they want – regardless of the underlying legitimacy of their demands. Migrant workers may believe that encircling the county Party headquarters with a sit-down protest will prompt local authorities to intervene in their dispute with the employer who has illegally failed to pay their back wages. Farmers dissatisfied by state seizures of their land for highway construction projects may believe that organizing large numbers of villagers to engage in a heated confrontation with local police (and inviting journalists to cover the proceedings) will prompt local authorities to offer them monetary compensation well in excess of what they are legally entitled to receive.

This is dangerous. It is not a recipe for stable institutional evolution. Rather, both local authorities and ordinary citizens are being driven to extremes. And the very legal norms and structures that state authorities themselves constructed as a response to the chaos of the Maoist era are steadily being eroded.

What Direction for Legal Reform?

It remains unclear in which direction Xi Jinping and other new Party leaders intend to steer the Chinese legal system.

Both before and after the 2012 leadership transition, tantalizing hints emerged that some might be amenable to returning to a somewhat more liberal atmosphere for legal reform. In October 2012, during the run-up to the Party leadership handover, the State Council issued a white paper laying out official talking points regarding judicial reform. Strikingly, it jettisoned the highly politicized language of recent years in favor of a much more objective tone.In December 2012, on the 30th anniversary of the 1982 constitution, Xi Jinping delivered an address regarding China’s need for rule of law – a speech interpreted by many as a signal in favor of liberal legal reforms. In January 2013, the new Party political-legal head singled out “the use of judicial authority” and “law-related petitions” (in addition to re-education through labor (laojiao) and household registration (hukou) policies) as areas ripe for reform.Last, in March 2013, central authorities announced a new president of the Supreme People’s Court, one strongly tied to legal reforms of the late 20th century (and a stark contrast to the outgoing head, tightly identified with recent hardline judicial policies).

However, recent developments have cast doubt on these promising signs. In the summer of 2013, Chinese leaders moved decisively to clamp down on pro-constitutionalist academic and popular discourse that had flourished in the wake of Xi’s December 2012 speech. A wave of detentions and arrests targeted public interest lawyers and legal activists.Recent months have also seen the resurgence of both Maoist-era rhetoric and practices. For example, central Chinese authorities are currently pursuing two separate campaigns, one to suppress corruption, the other to check the spread of online rumors. These have witnessed the spectacle of foreign executives and social media celebrities alike being paraded before state television cameras to make public confessions of their crimes as lessons to others.Common during the dark years of the Cultural Revolution, such practices had gradually faded from public memory following China’s decades-long experiment with legal reform.

Whether China’s new leaders will allow a return to meaningful legal change is uncertain. Top Chinese leaders have clearly signaled that they intend to maintain one-Party rule.Powerful vested interests are firmly opposed to any institutional reforms that might jeopardize their networks of influence and wealth. Faced with such constraints, the future direction of Chinese legal reform remains unclear.

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