Open Court?
The People’s Republic of China is not often thought of as a pioneer in legal systems. The first 30 years of the PRC was an era of lawless totalitarianism, where an individual or group’s legal standing was subject to capricious political whims. With the rise of Deng Xiaoping and the beginning of domestic reforms, modest attention was given to the rule of law. As China celebrates the 60th anniversary of the founding of the PRC, there is cause for cautious optimism regarding China’s legal system.
Long just a political tool for the exclusive private use of the Party, the functionality of Chinese courts remains hindered by systematic problems. The autonomy of local courts is limited because the courts’ budgets are largely dependent on local officials. According to Berkeley Law Professor Stanley Lubman, Chinese courts are often encouraged to mediate cases rather than render verdicts and to avoid taking cases which have implications for large portions of the society, like the tainted milk scandal. Particularly glaring is China’s arrests this year of prominent lawyers and legal advocates, including Gao Zhisheng, Xu Zhiyong and Liu Xiaobo.
All is not lost. Quietly, the PRC is beginning to take some positive steps toward solidifying their legal regime. Martin Hu, a Shanghai-based attorney suggests the biggest push for legal development has come as result of China’s entry into the WTO, which requires member nations to establish judicial review, transparency, and impartiality before the courts. The National People’s Congress is also expected to amend electoral law to equalize representation between its rural and urban citizens sometime at the end of this year or early next year. On the local level, Qinghai province has begun a training program for judges and prosecutors with Temple University’s Beasely School of Law.
Much work remains. Just last month, a teenage driver of an unlicensed taxi cut off one of his fingers as a means to assert his innocence after Shanghai police used a sting involving a civilian ‘fare’ to entrap and subsequently detain him for 12 days. China Mobile, the world’s largest phone company by subscribers, settled a case brought under the nation’s new anti-monopoly laws by Beijing lawyer Zhou Ze. Zhou, who merely wished to reclaim 1200 yuan for what he alleged were abusive and irrelevant fees. Following the old script, China Mobile agreed to settle out of court, yet defendant’s council, Xue Junfu, described the payment as a gesture of appreciation for Zhou’s suggestions, clearly attempting to avoid any precedent of settling claims monetarily. During a recent visit to Shenzhen by the US Commerce secretary, local authorities were singled out for the efforts at stamping out trade in pirated goods, as a means of highlighting its ineffective prevention elsewhere in China. Secretary Locke said a major cause for piracy’s continued role on the Chinese economy is that most cases are handled as administrative rather than criminal matters.
It is nothing new to state how difficult it is to rule China, let alone change to ruling by law. Yet, this is exactly what must be done for China to realize the social harmony it so ardently professes. A report issued last month by the US Congressional-Executive Commission on China, aptly stated “what we have seen in China is not the emergence of rule of law but rule by law.” If the Party wishes to be respected for its society as well as its economy, it must use laws to protect society, rather than simply protect itself.
Tags: Beasely School of Law, CECC, China, China Mobile, Civil Society, Gao Zhisheng, Gary Locke, Liu Xiaobo, Martin Hu, Politics, Stanley Lubman, Temple University, US Congressional-Executive Commission on China, Xu Zhiyong, Xue Junfu, Zhou Ze
