October 11, 2012
Just 40 years ago, as my family and I were completing a very pleasant and productive academic year in Japan, we had our first opportunity to visit China. We had been waiting to do so for more than a decade. For me, the highlight of the visit was a four-hour dinner conversation with Prime Minister Zhou Enlai. Never one to waste time, and always well-briefed on each of his guests, with a certain air of bemusement Zhou said to me, “I understand you have done many books about our legal system.” With his country still emerging from the chaos of the Cultural Revolution, I thought that Zhou might be politely implying that I had made more of the Chinese legal system than China had.
As we both knew, the country’s formal legal system, which had been based on the Soviet model, was in tatters and had been for many years. The National People’s Congress, China’s highest state body, was not functioning. The Ministry of Justice and the Procuracy, which were responsible for prosecuting cases and supervising the government on legal matters, were defunct. The courts were in a state of collapse. The 1957-58 “anti-rightist” campaign had abolished the legal profession; the country’s few law schools and law journals had closed. Institutions for arbitrating foreign business disputes had atrophied and the People’s Republic was but a passive observer to the international organizations and agreements that ordinarily regulate nations’ relations.
Today, more than 30 years after reformist Party Leader Deng Xiaoping steered the nation onto its current course, the situation is very different. China now has a formal, functioning legal system. The People’s Congress, with various legal experts and agencies, has developed a vast quantity of rules, which cover most areas of public activity. China has also resurrected and strengthened its court system, restored the Procuracy and the Ministry of Justice, and has re-established the legal profession. It now has roughly 200,000 judges, almost as many prosecutors, and over 215,000 lawyers. Legal education has flourished; there are now almost 700 law schools and law departments, and several hundred thousand people take the bar examination each year. Law journals and books have proliferated.
China has also expanded its international legal cooperation. It participates in many of the global multilateral treaties and organizations it once shunned. These govern everything from trade and investment to human rights. China also has an increasingly dense network of bilateral agreements. And, since the start of Deng’s Open Policy reforms in 1978, legal specialists from the United Nations, international organizations, foreign governments, universities, and law firms have poured in to help foster the country’s nascent legal system. Leading Chinese judges, officials, and scholars attend conferences around the world to spread the word that China has at last achieved its goal of establishing a “socialist legal system with Chinese characteristics.”
NINE-TENTHS OF THE LAW
This is an encouraging picture. But it is also seriously incomplete, since it totally omits the controlling power of the Chinese Communist Party, not only in terms of the big picture — ideology, constitutional principles, legislation, and the design of legal education. But it also has a stranglehold on the granular details: the selection, training, promotion, and removal of judges and other legal officials. There is also the licensing, restriction, disbarment, and prosecution of lawyers. And, of course, the Party can dictate outcomes in individual court cases.
A succession of high-profile cases leaves little doubt that “politics is in command” in China. Think of the trials of well-known figures such as Liu Xiaobo, the Nobel Peace Prize winner; Chen Guangcheng, the blind “barefoot lawyer”, Ai Weiwei, the indomitable artist and human rights activist; or Gu Kailai, the convicted murderer and wife of a deposed political leader, Bo Xilai. The CCP touches many criminal and civil cases, and commercial and administrative law disputes as well.
But the Party’s domination is not limited to show trials. Whether the dispute at hand relates to environmental protection, food safety, property ownership, forced demolition of houses, or the faulty construction of the schools that collapsed during the Sichuan earthquake in 2008, the CCP has frequently mandated that the courts make rulings favorable to the party. The party does not even permit the courts to hear the complaints of human rights advocates who have been kidnapped by the police or held prisoner in their own home. Few of the hundreds of thousands of people the police annually send off to 3-year “re-education through labor” programs for non-criminal offenses are allowed judicial review.
Party domination of the legal system is not ad hoc, but institutional and systemic. Party and judicial leaders openly preach it. The apex of the Chinese legal system is not the Supreme People’s Court or even the National Party Congress, to which the courts are subordinate. And although the Standing Committee of the Congress has the exclusive power to interpret the constitution, in practice the party forbids it to do so (except with respect to Hong Kong). Real power rests with the Communist Party Central Committee’s Political-Legal Commission (PLC). Zhou Yongkang, former Minister of Public Security, presides over the PLC and is also one of the nine all-powerful leaders on the Party Politburo’s Standing Committee. The PLC controls the courts, the Procuracy, the Ministry of Justice, the Ministry of Public Security, the Ministry of State Security, and the law-related activities of the National Party Congress.
Within the PLC is a political-legal commission corresponding to every level of government. Each commission controls the legal institutions at its own level, including by influencing judicial decisions in sensitive cases. The chairman of each commission has generally been the chief of the public security bureau at that commission’s level. But because of dissatisfaction with such police domination as well as corruption, there is widespread lack of public confidence in the integrity of the courts. And there is widespread lack of public confidence in the integrity of the courts the PLC oversees. To address the problem, the CCP recently started experimenting with several new modes of selecting the chairmen. And this past spring, the PLC summoned all 3,300 of them to Beijing for several months of intensive training.
BALANCING THE SCALES
As the CCP prepares to convene at its eighteenth National Congress in November, the immense power wielded by the PLC and by its subordinate has become a controversial subject. The PLC’s leader, Zhou, is nominally ranked number nine in the CCP leadership. But in recent years, in the eyes of some other leaders he has accumulated a worrisome amount of power. One often-cited illustration is that the budget for the country’s internal security, including law enforcement and the legal system, now exceeds that for national defense. There have been reports that his powers have recently been restricted.
More significantly, some party members have proposed reducing the size of the Politburo Standing Committee from nine members to seven. Presumably, the move would be an opportunity to eliminate from the group the next Political-Legal Commission chief. That person would likely be relegated to the ranks of the 25-member Politburo. Police domination of the numerous lower level PLCs has also begun to be restricted by internal party rules. And some liberal reformers within the CCP continue to push for the PLC to stop interfering in individual cases, a goal that former Party leader Zhao Ziyang advocated prior to his fall from power in 1989.
So will the judicial system be granted greater autonomy in the near future? The choice of Zhou’s successor, even if he is not invited to join the ranks of the super-elite Politburo Standing Committee, will have major implications for the relationship between politics and law. But much also depends on the policies and views of the new top leaders. So far, only two members of the forthcoming Standing Committee can confidently be identified: Xi Jinping who will serve as China’s President and Li Keqiang who will serve as Premier. Moreover, given the nature of the Chinese political system, it is impossible to know in advance what the new leaders will do once in office. One does not reach the pinnacle of power in China by calling for genuine rule of law and greater legal protections for human rights. Yet, as a just-published government White Paper on judicial reform suggests, party leaders show increasing awareness of the growing popular demand for improving the legal system.
China’s new leaders will have to choose between repression, which abuses the legal system and adds to social tensions, and setting in motion policies that will lead to the establishment of an increasingly independent judiciary and legal profession. This route would offer greater institutional opportunities for peacefully resolving the growing number of social and economic conflicts. The latter path will reduce dictatorial power but will likely produce the long-term political stability that the CCP has thus far sought in vain. Deng chose the first course, while in Taiwan Chiang Ching-kuo, the son and heir of Chiang Kai-shek, wisely initiated steps toward the second, which has brought both democracy and the rule of law to what used to be a traditional Chinese society. We will never know what Zhou Enlai might have done, but China’s next leaders, a cautious, yet sophisticated group, may opt for gradual institutional progress.
This article was published in the online version of Foreign Affairs on October 11, 2012 under the title “Courts with Chinese Characteristics.” It is adapted from an article featured in the new issue of the Japanese journal, Foreign Affairs. Image from Foreign Affairs (courtesy of Reuters).
Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations.