The Rule of Law Ascends … in China?
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Now and again, courts court justice.
Now here’s a first-class oxymoron: the rule of law — under the leadership of China’s Communist Party. Are the laws, duly passed and enacted, running the show? Or is the country’s government sticking its nose into everything and guiding the outcome?
No matter how you parse the question, one thing’s for sure in China: Courts of law are increasingly stepping out of the shadows to play a more prominent role regulating Chinese society by settling disputes, with landmark cases aimed at enforcing environmental law, checking the abuse of government power and just figuring out how to split up property in messy divorce cases. And more of what they do is on public record, making big areas of law more transparent. Instead of lodging a petition with the government, says Beijing lawyer Wei Shilin, the Chinese are increasingly taking their complaints to a judge, and the courts are often asked to weigh in on the complicated issues thrown up by the rapid changes in this society.
The trend shows clearly in case statistics: The number of civil cases that hit the court rose by 41 percent in the five years leading up to 2013, reaching 8.8 million, according to China’s statistical yearbook. This increase, says Scott Wilson, a political scientist at The University of the South, is “a measure of public confidence in the courts.” Wilson, who’s spending the year in the city of Wuhan studying the legal system, adds that a strong court system helps bolster the legitimacy of the government. At the same time, when Wilson talks to Chinese, he warns there’s “a mixture of confidence and disbelief about the ability to get a fair trial.”
Local officials are now barred from interfering with proceedings, although they have other ways to influence the process …
That skepticism is easy to understand. Zhou Qiang, the head of China’s Supreme People’s Court, has a reputation as a reformer and has railed against judicial corruption. Yet he recently denounced the idea of judicial independence as an “erroneous Western thought.” Local governments pay judges and control their careers, hardly creating incentives to rule against corrupt officials or faulty administrative decisions. “Pressure on the courts in cases against the government is big,” says Wei. “If they find just a slight justification, the case will fail.” (A government spokesperson didn’t respond to a request for comment.)
And yet, China has good reason to change that. Frustrated Chinese are increasingly willing to take to the streets to protest pollution, or even carry petitions to Beijing in an effort to seek redress for things like suspicious seizures of land or property. “They want people to get off the streets and quit going to Beijing,” says Susan Finder, a lawyer in Hong Kong who keeps a blog on the Supreme People’s Court. And the only way to do that is to enhance the credibility of the courts.
A few recent cases are doing precisely that. Wei, for one, recently won a landmark case against a branch of Guangdong province’s government, the first under a 2008 law aimed at stopping the government from interfering with workings of the market — in this case, by approving computer software standards that threatened to hand a monopoly over to one provider. Even if the case is overturned on appeal, it promises to set an important precedent. Late last year, a court in Jiangsu province assessed a $26 million fine, by far the largest ever, on six companies convicted of discharging acid into waterways. “It sends a significant signal to polluters that this is a new game,” says Wilson. Some companies have in response started inviting in environmental experts from activist organizations to conduct audits in an effort to avoid landing in court, according to Wilson.
Experts agree certain areas of the law are moving ahead more quickly than others — for example, the enforcement of intellectual property claims, family law and the environment, where some 250 special courts have been established. These are areas where government interests may increasingly coincide with those of the broader society. Plans are underway to move the funding and administration of courts from the local to the provincial level, and courts are now required to register cases immediately, instead of just ignoring those that judges, or local officials, don’t want to hear. Local officials are now barred from interfering with proceedings, although they have other ways to influence the process, from intimidating lawyers to buying off claimants. Human rights courts, of course, are but a distant dream.
While the changes are real, for many they can’t come fast enough. Wei describes the current reforms as “passive.” Because the courts don’t have an independent power base, he argues, “everything can only progress very slowly.” In many ways, the question is whether the glass is half full or half empty. Until not too long ago, that glass had just a little water sloshing around at the bottom.