China
legal reform hopes are
premature By Carl Minzner
Hopes for reform in China have risen in
recent weeks. Xi Jinping's decision to make
Shenzhen the site of his first formal inspection
tour as party general secretary spurred
predictions that he will seek to assume Deng
Xiaoping's mantle as an economic reformer.
Similarly, Xi's speech regarding China's need for
the rule of law - given on the 30th anniversary of
the 1982 constitution - gave rise to press
speculation that he may pursue legal and political
reform. Naturally, this comes against the
background of a conservative turn against legal
reform by Chinese leaders in recent years. [1]
Since 2005, party authorities have cooled on the
rule-of-law discourse that characterized the late
1990s and early 2000s. Party political campaigns
have warned Chinese judges and courts
against foreign legal norms.
Public interest lawyers have been subjected to
increased pressure, harassment and periodic
disappearances or torture. Moreover, under the
leadership of former party political-legal
committee head and standing committee member, Zhou
Yongkang, extralegal "stability maintenance"
(weiwen) institutions have ballooned in
size and influence.
New language in
official pronouncements now suggests Chinese
leaders intend to reverse at least some of these
policies. This appears to be linked directly to
internal party efforts to curb the power of
political-legal committees in the wake of the Bo
Xilai scandal. This shift has allowed activists
some greater space to advocate for reforms to
state practices, including the reeducation through
labor (RETL) system. Central authorities, however,
remain committed to maintaining party political
control, rendering it unclear how far such legal
reforms will be permitted to proceed.
Changes in party rhetoric
Ironically, some of the key linguistic
shifts have not originated (at least on the
surface) from Xi himself. Rather, they came from
former Party General Secretary Hu Jintao during
the run-up to the November leadership handover.
One such shift originated with Hu's July
23 speech to ministerial and provincial heads.
Attended by all of the then-members of Politburo
Standing Committee and presided over by Xi, it was
accompanied by an unusually high degree of media
coverage. At the time, the speech was widely
viewed as an opportunity for top Chinese leaders
to demonstrate their unity in the aftermath of
Bo's dismissal and publicly emphasize Xi's role as
the heir apparent in the political succession
process, but lacking in substantive content
regarding institutional reform.
This
speech, however, appears to have introduced a new
political phrasing (tifa), calling for authorities
to "devote more attention … to the important uses
of rule of law in national governance and social
management (shehui zhili)". Since party
political-legal authorities had employed "social
management" as an umbrella term for the expansion
of their activities in recent years, this new
phrasing appears to be an implicit rebuke. It
suggests that Chinese leaders may deploy
rule-of-law norms strategically to curtail the
power of party political-legal authorities.
Further linguistic changes appeared in the
2012 work report delivered by Hu and drafted by
Xi. Parallel passages of the 17th and 18th Party
Congress work reports also offer some hints of
reform:
"Each party organization and all
party members must self-consciously operate
within the boundaries of the constitution and
the law, and must take the lead in upholding the
authority of the constitution and the
law".
"Since the party has led the
people to promulgate the constitution and laws,
the party must operate within the boundaries of
the constitution and laws. No organization and no
individual are entitled to special powers
exceeding the constitution and laws. It is
absolutely impermissible for (any individual in
power) to take their own words as law, to use
power to suppress the law, or to bend the law for
ones relatives or friends". [2]
The 18th
Party Congress Work Report has marginally stronger
language that the party itself is obligated to
operate within the confines of the constitution
and laws. This, however, remains nuanced by the
statement that the party itself remains the
originator of both. Last, the final sentence
clearly implied that this change in nuance is
aimed at combating problems raised by recent
scandals, such as the one surrounding former
Chongqing Party Secretary Bo Xilai.
Yet a
third example of a change in rhetoric occurred in
the White Paper on Judicial Reform released by the
Information Office of the State Council in October
2012. Such documents (issued in 2008 and 2011 as
well) serve a regular propaganda function, reeling
off state accomplishments in the field of human
rights. They also serve to transmit the officially
approved political line regarding legal reform.
For example, the 2011 white paper
confirmed the shift away from pro-reform agenda of
earlier years. Rather than emphasizing the need to
establish the "rule of law," it spoke of building
a "socialist legal system with Chinese
characteristics." Where the 2008 document spoke of
these efforts as a work in progress, the 2011
version stressed that these efforts were largely
completed. It also deleted discussion of China's
efforts to engage in international legal
cooperation in favor of extensive rhetoric
regarding the inapplicability of foreign legal
norms to China.
Now, the 2012 white paper
marks a sharp break with the version issued just a
year ago. The politicized language regarding a
"socialist legal system with Chinese
characteristics," a hallmark in Party
political-legal pronouncements over recent years,
has receded. The white paper clearly states that
the current round of legal reforms begun in 2008
(not coincidentally, the year that Wang Shengjun,
the current conservative head of the Supreme
People's Court, assumed office) is "basically
finished." Even more noteworthy, there is not a
single reference in the entire document to the
Chinese Communist Party.
Of course, it is
important to not overstate the thrust of the 2012
white paper. While it characterizes judicial
reform as an integral part of "institutional
political reform" and states that it will continue
to strengthen in the years to come, it gives no
concrete suggestions as to how this will be
carried out. It also clearly states that Chinese
judicial reform will proceed from its own
"national characteristics" and will not "copy"
models from other countries.
Nonetheless,
the white paper does suggest that some Chinese
leaders may seek to curb efforts of party
political-legal organs to re-impose greater
political controls on the Chinese judiciary in
recent years. The paper also suggests there may be
some openness to dealing with the issue of
judicial and legal reform in a more objective
manner.
Implications Liberal
intellectuals and reformist officials have sensed
the shift in political winds. Many view the party
political-legal apparatus as politically
vulnerable now, following the fall of Bo Xilai,
central discontent with Zhou Yongkang's role in
the affair and subsequent central moves to
downgrade the bureaucratic rank of political-legal
committees.
Over the fall, this led to a
rising tide of criticism directed at the RETL
system run by China's security organs. Used as a
convenient tool to suppress prostitutes,
petitioners, political dissidents and underground
church members, this extrajudicial detention
system has been linked to a range of abuses
against detainees. In August, journalists,
academics and citizen activists seized on the case
of Tang Hui, a mother sentenced to a year and a
half in a labor camp after petitioning authorities
in search of heavier punishment for the men who
allegedly kidnapped and raped her 11-year old
daughter.
Tang's case generated a surge of
sympathetic commentary on micro-blogging sites,
resulting in her release by Chinese authorities
seeking to appease popular sentiment. Official
commentary in state media appeared to indicate
some central support for broader reform. For
example, a November editorial in the People's
Daily criticized the RETL system as having
devolved into a "tool for attacks and reprisals"
by some officials and singled out the case of Ren
Jianyu, a local official in Chongqing sentenced to
RETL in 2011 for his criticism of Bo Xilai's
policies. Liberal academics and activists have
since merged their reform calls with these
developments and some have pressed for the
complete abolition of the RETL system.
Nor
have they stopped there. Liberal critics have
latched on to new language emanating from central
authorities to push for yet deeper reforms.
Academics and public interest lawyers have held
conferences calling for judicial independence.
Jiang Ping, one of the key figures involved in
late 20th century legal reforms, has noted that Hu
Jintao's July 23 speech has had a "positive
effect", but that emphasizing rule of law remains
"meaningless" absent political reform.
Jiang specifically criticized hard-line
policies pursued by party political-legal
authorities in recent years, including heavy
emphasis on social stability, shifts away from
efforts to professionalize the Chinese judiciary
and promote court adjudication of citizen disputes
according to law as well as the heavy use of
mediation ratios to evaluate Chinese judges.
Similarly, constitutional law scholar Tong Zhiwei
has called for central authorities to back up
their statements on reform with meaningful action,
separating party and state organs and creating
mechanisms to supervise rights guaranteed in the
constitution.
Such calls for deeper legal
and judicial reform face serious internal
opposition. Supreme People's Court President Wang
Shengjun, one of the key figures responsible for
recent hard-line policies in the court system, has
retained his seat on the Central Committee. Joseph
Fewsmith predicts Wang will follow the
bureaucratic path of his predecessor, Xiao Yang,
and be permitted to serve until the 19th Party
Congress in 2016. Moreover, as of late December,
Wang himself was continuing to reiterate key
themes - such as the importance of social
stability considerations in handling cases and the
overriding emphasis on mediation - that have been
hallmarks of the conservative turn against legal
reform in recent years.
Additionally,
prior experience suggests caution in evaluating
the promise of legal reform by new party leaders.
Following Hu Jintao's accession as party general
secretary in 2002, the appointment of moderate
reformers to government posts and an increase in
official rule-of-law rhetoric, domestic and
foreign observers sensed Chinese authorities might
be open to meaningful legal reform. This led to a
surge of activism by citizens, journalists and
legal activists regarding an extralegal detention
system (custody and repatriation) linked to the
abuse and deaths of detainees. [3].
When
the new party authorities abolished the system in
2003, many took this as a sign that China's
constitutional moment perhaps had dawned.
A decade later, however, it appeared that
these hopes had been premature. Once the new party
authorities had navigated successfully the
domestic political transition, officials moved to
curtail the judicial institutions, the rule-of-law
rhetoric and the public interest lawyers that had
marked the late Jiang and early Hu periods.
So is the current bout of reformist
language a marker of real change or simply a
transitory artifact of party divisions arising
from the fight over leadership succession? Since
it remains highly unlikely that central
authorities will announce the creation of
meaningful electoral or legal checks on party
power, here are some other potential markers to
watch over the coming year:
Whether personnel reforms raise the
bureaucratic profile of the Chinese judiciary
vis-เ-vis that of the public security organs;
Whether concrete performance evaluation
measures facing local officials are altered,
particularly the hard-line emphasis in recent
years on maintaining social stability and
controlling citizen petitioners;
Whether the content of official "model judge"
propaganda campaigns - which has shifted in recent
years away from an emphasis on judicial
professionalism in favor of revived Maoist
populism - is altered to reflect the new language
coming from the center;
Whether official pressure and repression of
public interest lawyers is reduced.
Carl Minzner is an
associate professor at Fordham Law School
specializing in China law and governance. Prior to
entering academia, he served as Senior Counsel to
the Congressional-Executive Commission on China.
He is the author of China's Turn Against Law
(American Journal of Comparative Law, 2011).
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