China Turns Against LawCarl Minzner in The Wall Street Journal, July 04, 2012
BY Carl Minzner
Toward the end of the last century, Chinese authorities visibly tried to turn toward law. But in the 21st century so far, they've turned against it.
Since 2006, the Party has launched political campaigns reasserting tighter ideological control over the Chinese judiciary. It escalated the official harassment of legal activists and public interest lawyers, while shifting citizen disputes away from court trials that are decided according to law.
Instead, the authorities are placing heavy pressure on judges to resolve cases through mediation. More worryingly, they're reviving extrajudicial institutions for mediation that had fallen in disuse since the beginning of the reform period in 1978.
China is supposed to have left all this behind. Horrified by the chaos of the Maoist era, Chinese authorities rebuilt their legal system in the 1980s and 1990s. They trained judges in law. They allowed lawyers a degree of autonomy to represent their clients. They emphasized the need to resolve disputes in court—and according to law—rather than through politicized struggle sessions, a la the Cultural Revolution. They even enacted administrative laws giving citizens limited rights to challenge the power of local officials in court. Central to all of these efforts was a search for stable institutions to resolve citizen grievances, albeit under firm Party control.
But Beijing has now turned against these reforms. Some concerns are practical. Authorities now think professionalizing the judiciary doesn't work for rural Chinese courts which simply don't have trained personnel, and which often need to handle disputes according to local traditions.
However, the real concern is political. Beijing worries that decades of official rule-of-law rhetoric are fueling surging numbers of petitions, protests and suits by citizens who seek to protect their legal rights. The idea of rule of law is even leading some officials to perceive law as superior to Party policy. Authorities also fear that China's growing public interest lawyers might emerge as the core of Arab Spring-style protest movements.
This new line from the central government is an integral component of hardline "stability maintenance" political policies that have swept through the Chinese state in recent years. Central signals to local authorities are clear. Contain all disputes at the local level. Hold down the numbers of court cases. And, at all costs, prevent disgruntled petitioners from reaching Beijing.
Salaries and jobs of local officials are increasingly tied to their success in realizing these goals. Local judges and government bureaus are told that they must "successfully" mediate at least 80% and sometimes even 100% of the disputes that come before them. Local Party officials know that their jobs are on the line if even a single petitioner from their jurisdiction shows up at the door of higher authorities.
This pressure is warping local governance across China. No wonder illegal detentions of petitioners and activists such as Chen Guangcheng are on the rise; local authorities in Shandong province, for instance, were responsible for harassing Mr. Chen and his family. Meantime, judges are forced to twist the arms of parties to reach their mandatory target ratios for mediation; otherwise, they just refuse to accept difficult cases. Others report simply using their own court budgets to pay off disgruntled parties who threaten to stage protests.
To be sure, law has not been abandoned in China. Authorities continue to promulgate statutes. Citizens continue to invoke legal norms to protect their interests. And state bureaus have been prodded to make some progress in disclosing their opaque budgets.
Nor are all of these developments completely negative. The search for new dispute resolution systems may give rise to reforms that respond better to rural Chinese needs than the court-centered measures of the 1990s. Not to mention, litigation has fallen out of favor in many countries (including the United States) as parties and judges search for simpler and less expensive channels to resolve grievances.
Still, the worry is that as Beijing backs away from legal norms, the authority of state institutions suffers. When parties and lawyers do not receive a fair hearing of their grievances in court, or are abused for simply raising them, they lose faith both in the system and in the possibility for gradual reform. And when authorities facing street protests or populist media outbursts sometimes cave in (regardless of the legitimacy of the underlying demands), citizens conclude that a well-argued case may be of less value than riling up a mob.
This is the real risk posed by the decision of Chinese officials to turn against their own reforms of the last several decades. They built legal institutions in an effort to govern China with a more stable set of norms. Now, in a single-minded quest for the short-term appearance of social stability, they are undermining China's long-term prospects of actually achieving it.
Mr. Minzner is an assistant professor of law at Fordham Law School specializing in Chinese law and politics. This is adapted from a longer article in the American Journal of Comparative Law.