Rule of Law in China: Past, Present, and Future

Carl Minzner in The Diplomat, September 07, 2012

Media Source

The conclusion of the Gu Kailai trial recently prompted an outpouring of interest in what the case might signal for the direction of rule of law and legal reform in China.

As some have already pointed out, the answer is actually . . . nothing.  As is well known, the Chinese legal and political systems are deeply intertwined.  It therefore came as no surprise that a high-profile murder trial involving the wife of a former Politburo member was almost certainly decided at the top levels of Chinese Communist Party long before the case was brought before a judge. Indeed, it would have been surprising if it had been otherwise.

Instead, the critical rule-of-law story in China is a different one.  Specifically - the trend of recent years in which central authorities have turned against legal reforms they themselves had launched at the end of the 20th century - reforms that emphasized the roles of law, lawyers, and courts in resolving a wide range of ordinary citizens’ grievances, and in helping in the daily governance of China- and whether this turn against law will continue under the new leadership.

State rhetoric has also shifted alongside the actual changes in the legal system.  In the 1990’s and early 2000’s, for example, officials emphasized the need to build the rule of law in China and borrow concepts from foreign legal systems to do so.  Now they speak of defending the “socialist system of laws with Chinese characteristics” and stress the fundamental differences between China and other countries.

Since 2006, new political campaigns have proliferated in courts and government institutions.  These reemphasize the supremacy of the Communist Party and warn against the infiltration of “Western” rule-of-law concepts.  Indeed, even the content of the national bar exam has been altered to reflect these changes.

Personnel changes have also swept through the Chinese judiciary.  In 2008, Party authorities replaced the outgoing head of the Supreme People’s Court (strongly identified with many of the 1990s-era legal reforms) with a Party political-legal cadre whose main prior career experience had been his time serving as a provincial public security chief.

The work of the courts has changed as well.  Since 2003, Chinese authorities have moved away from court trials according to law, which were heavily emphasized in the 1990’s as the preferred means for resolving disputes.  In their place they have revived Maoist-style mediation practices.  And they have revived and expanded programs that train ex-military officers to serve as judges in rural courts, a practice which had fallen out of favor during the 1990’s.

State pressure has mounted on public interest lawyers such as Xu Zhiyong and Teng Biao, as well as rural legal activists like Chen Guangcheng.  In 2003, these lawyers and activists were publicly pressing national authorities to address illegal detention systems and openly organizing villagers to contest the abuses of local government authorities.  A decade later, they face regular harassment, lengthy house arrest, forcible “disappearances,” and exile abroad.

Lastly, cooperative rule-of-law programs have become more politically sensitive. In the early 2000s, a range of U.S. and foreign entities had significant leeway to work with Chinese organizations on a wide range of legal reform topics.  That space has since contracted.  More questions are asked.  Chinese partners face more pressure. And a wider range of subjects are simply off limits for discussion.

What explains these changes?  Some of the considerations are eminently practical.  Some central authorities worry that the 1990’s efforts emphasizing formal law, court adjudication, and professional judges have meshed poorly with the practical realities of rural China. In particular, they point to the rural parts of the country which often lack any lawyers and struggle to find university-educated judges to fill seats on the bench.

Other concerns, however, are explicitly political.  Party authorities fear that official support in the late 1990’s for the concepts of constitutionalism and public interest law gave rise in the early 2000’s to judges who supported the idea of using the constitution to restrain government power, and to public interest lawyers who sought to mobilize plaintiffs and media attention to challenge local government abuses. This, combined with the 2003-2005 “color revolutions” in Central and Eastern Europe and the 2011 Arab Spring, is clearly troubling for the Party leadership.

Of course, neither China nor the Party are monolithic.  Even within the halls of power, many judges, government officials, and Party members express concern at the decision of central authorities to turn their backs on late 20th century legal reforms.  As one noted, “In China, reform and revolution are in a race, and it isn’t clear which will reach the finish line first.”  Despite the continued debate, over the last decade those who supported gradual institutional and legal change have ceded power to the expanded influence of Party political-legal organs and the security apparatus dominated by hardline forces.

The big question moving forward, then, is what happens in the fall?

Within the next three months, there will be once-in-a-decade turnover of the top Party leadership.  Speculation is currently running rampant as to who this will elevate to the top of the system, and whether this might lead to renewed openness for legal reform.  Reports suggest that top leaders may reduce the bureaucratic stature of the powerful Political and Legal Affairs Committee, possibly curtailing its power.  Perhaps sensing a target of opportunity, Chinese legal activists have ramped up their calls for reform of re-education through labor (laojiao) - a controversial extrajudicial detention system that gives security organs wide leeway to sentence petty criminals and political dissidents.

Might change at the top lead Chinese authorities to reconsider their views on legal reform?  Will gradual institutional change again be on the agenda when the new leadership takes the rein?  Those are the real legal stories to follow over the next year, not the predetermined outcome of Gu’s murder trial.

Carl Minzner is an assistant professor of law at Fordham Law School specializing in Chinese law and politics. He edits the China Law and Politics Blog.