This article was originally published on August 1, 2013 in the Wall Street Journal's China Real Time Report. In this article, Stanley Lubman cites USALI Research Scholar Ling Li's investigation into corruption in China's judiciary.
The Gaping Hole in China’s Corruption Fight
By Stanley Lubman
The ongoing campaign against corruption that forms the backbone of new Chinese president Xi Jinping’s reform platform is not nearly as robust as Communist Party media would have us believe. It is directed more at symptoms than causes and is limited in scope due to fears of citizen agitation on broader issues such as press freedom and transparency. It also suffers from a glaring and an important omission: The judicial system, although it should be the appropriate institution for exposure and punishment of offenders, is itself infected by corruption that up to now has gone unmentioned.
An ongoing Chinese government investigation into drug maker GlaxoSmithKline for allegedly using a travel agency to channel some 3 billion yuan in bribes highlights the depth of China’s corruption problem. Even in the country’s hospital system, where lives hang in the balance, doctors and other medical staff routinely take kickbacks from pharmaceutical firms and sellers of medical equipment.
Xi Jinping rightly recognizes that corruption is so deeply embedded in Chinese political life that it threatens the very life of the Communist Party. But going after foreign companies is relatively easy. The question is whether Xi and the rest of the party leadership are willing or able to confront more fundamental abuses at the heart of the political system.
The credibility of China’s current anti-corruption campaign has plummeted following a crackdown on activists calling for greater governmental transparency. More than a dozen have been taken into custody in recent months, including well-known human rights advocate, law lecturer Xu Zhiyong, who was detained by Chinese police in July because he had “gathered crowds to disrupt public order.” In May, Xu, together with others, issued an open letter that urged release of 10 activists who had been arrested for publicly demonstrating against corruption and who had called on officials to disclose their financial assets.
By detaining Xu, Chinese authorities have silenced one of the country’s more prominent advocates of legal reform. In doing so, they have lessened pressure on themselves to confront the corruption infecting the country’s courts.
To be sure, in recent years judicial professionalism in China has increased, and the number of court personnel investigated for violations of discipline has fallen, from 712 in 2008 to 519 in 2011. Yet many who work in the system continue to describe it as severely impaired. Not long ago, a lawyer in a large Chinese law firm told me that he avoids litigation as much as possible because of rampant corruption in the courts.
The problems of the courts have been well-documented. Available sources summarized here suggest that the wide extent of corruption is facilitated by the way the courts are organized and supervised. The courts are not independent because they are bureaucratic organs in the political system, no different than other government agencies. As Hong Kong-based political scientist Gong Ting wrote in The China Review, the finances of the courts are determined by the local government. Senior judges are nominated by the local CPC Committee and endorsed by the local People’s Congress, meaning judges whose decisions are seen to violate Party policy may be discharged or otherwise punished. The courts are subject to the extra-legal authority of the Political-Legal Secretary of the local Party Committee, which deals with difficult and important cases referred to it.
The courts are not publicly accountable because decision-making is dominated by their Adjudication Committees, composed of senior judges who are also members of the Party leadership within the court. The Adjudication Committee is supposed to review “significant” or “complicated” cases—although neither term is legislatively defined and judicial discretion is very broad.
Xin He of City University of Hong Kong studied one court in which the committee reviewed most criminal cases, often increasing criminal fines, likely because the court was seeking increased revenue. Civil cases were reviewed because “the committee is a good shelter for avoiding risk.” The adjudicating judge, who originally heard the case, is relieved of responsibility if any solution turns out badly– because the committee decides cases collectively. Last but not least, the committee is a “safety device to protect the adjudicating judges and the committee members from being accused of corruption.” It can also “accommodate ….extra-legal interferences,” such as judicial accession to easily hidden outside political demands.
Another study, by Li Ling from the Northwest University of Political Science and Law, relies on media reports and press releases related to charges of corruption against 388 judges between 2005 and 2008. The author argues that judicial corruption is not the “deviant behavior of a few black sheep eluding prescribed judicial conduct” but “an institutionalized activity” at the center of the judicial system, embedded in courts’ decision-making process. She also found that corruption isn’t limited to higher-level judges; it frequently involves lower-level judges, whether collaborating with superiors or acting on their own.
The power of the Party leaders embedded in the courts is comprehensive. Without participating in court proceedings they can instruct leaders of the court by sending internal instructions to their subordinates that merely dictate the desired result in the case and do not have to be supported by any reasoning, nor referenced in the final decision. Moreover, the Party leader who issues the instruction “is not responsible for the legitimacy of his acts,” even if procedural or substantive laws are violated or misapplied. The leaders can control the outcomes of many cases without ”rational legal interpretation and adjudication” even though they do not participate in the entire process of adjudication– a perversion of the judicial function as it is understood in systems based on the rule of law.
The issue of corruption in the courts has not been raised in the current anti-corruption drive, probably because judicial reform of any kind would affect the basic roots of CPC power. One American scholar, Elizabeth Economy, observes that there is “no institutional change to ensure that that roots of corruption are addressed” and none seem likely in the near future.
A number of foreign observers seem to agree that the Party-state’s concern to maintain “social stability” is the reason limiting the reach of the campaign. As Beijing-based political scientist Russell Leigh Moses put it in a column for China Real Time last month, “the issue is how much information and oversight do you give people without undermining party rule.”
Failing to hold the legal system accountable for its own corruption may be hypocritical, but it’s a hypocrisy the Party likely believes it must live with at the moment, even if it will came back to haunt them later.