China at the Tipping Point? July 11, 2013 [ChinaFile] The Turn Against Legal Reform CARL MINZNER 07.11.13 What will be the future of China’s authoritarian political system? Many predicted that China’s rapid development over the past several decades would inevitably lead to gradual liberalization. Economic growth was expected to generate a cascade of changes—first to society, then law, and eventually politics. Events appeared to confirm these projections. As Chinese authorities opened up the economy in the late twentieth century, they also launched sweeping reforms of the nation’s legislative and judicial institutions. The events of the past decade, however, have called these assumptions into question. From 2000 to 2011, per capita GDP in China more than quintupled, skyrocketing from US$949 to $5,445. But one-party rule remains intact under the Chinese Communist Party (CCP), and Chinese authorities have turned against many of the legal reforms that they themselves enacted back in the 1980s and 1990s. Lawyers have come under increased pressure. Political campaigns warning against rule-of-law norms have rippled through the courts. And under new policies making “stability maintenance” (weiwen) a top priority, central authorities have massively increased funding for extralegal institutions aimed at channeling, curtailing, and suppressing citizen discontent. These shifts have choked off institutions for venting dissatisfaction and redressing ills that are key to the CCP’s continued resilience as an authoritarian regime. The changes have fueled social unrest, funneling citizen grievances into a rising tide of street protests instead of institutionalized legal or political participation. And they have led to new worries at the center regarding the danger posed by individual CCP officials (such as disgraced Chongqing CCP boss Bo Xilai) seizing parts of the weiwen apparatus for their own ends. For precisely these reasons, an increasing number of officials, academics, and activists have called on central authorities to revive flagging legal reforms in the wake of the November 2012 leadership succession. China may indeed be at a tipping point. But it is not clear which way it will tip. Authorities may restart legal reform as part of a comprehensive program of political and institutional transformation. Or they may refuse, risking an escalating spiral of social and political turmoil. 1 In the 1970s and 1980s, CCP authorities turned their backs on decades of political radicalism and socialist economic policies. They launched extensive legal reforms aimed at building new structures to govern China. Officials reopened law schools shuttered during the turmoil of the Cultural Revolution (1966–76). They used academic and professional exchanges to aggressively import foreign legal concepts. They issued hundreds of new statutes and regulations, creating a comprehensive framework of civil, commercial, criminal, and administrative law. Authorities promoted court trials, conducted according to these newly promulgated laws, as the preferred venue for resolving ordinary civil or commercial grievances and disputes. In 1989, Chinese authorities even issued an administrative litigation law giving ordinary citizens limited rights to sue state authorities in court. Reforms continued throughout the 1990s. Authorities professionalized the judiciary, moving away from the practice of staffing courts with former military officers. They removed definitions of lawyers as “state legal workers” and privatized the bar. By the early 2000s, the state-owned law firms of the 1980s had given way to an explosion of private firms, domestic and foreign alike. In 1997, central authorities adopted “rule according to law” (yifa zhiguo) as a core Party slogan. Parallel constitutional amendments followed two years later. Legal reform even emerged as a subject in China’s foreign relations, with U.S. and Chinese diplomats agreeing to initiate cooperative exchanges on legal reform. Naturally, Chinese leaders aimed to advance their own interests through these reforms. Ideologically, they wanted an alternative source of legitimacy to Maoist revolutionary principles on which to ground their rule. Practically, they desired new mechanisms to help resolve the mounting social conflicts created by rapid economic development and urbanization. Law, litigation, and courts seemed to be the solution. Administratively, central leaders sought new ways to monitor their local officials and better respond to pervasive principal-agent problems within the bureaucracy. They also wanted to gather better information on domestic problems facing China. Allowing citizens a limited ability to challenge local officials through court channels, or to offer opinions through legislative ones, promised to help address these concerns. As Andrew Nathan noted in 2003, these reforms helped to strengthen the internal stability of the Chinese state.2 They institutionalized CCP rule. They channeled popular discontent (regarding violations of citizens’ rights or official abuses of power) into institutions within the existing political system, rather than radical underground organizations seeking to overturn the party-state. Legal reforms also played an important role in foreign policy. Rule-of-law discussions with foreign governments, for example, provided a politically more acceptable forum for discussing human rights in advance of China’s 2001 entry into the World Trade Organization. Central reforms emboldened bureaucrats farther down the ladder to push institutional change forward under the rule-of-law banner. By the late 1990s, Chinese legal academia was abuzz with discussions of constitutionalism and constitutional supremacy (xianfa zhishang). In 2001, the Supreme People’s Court (China’s highest judicial body) took the groundbreaking step of authorizing a provincial court to actually apply the (otherwise nonjusticiable) Chinese constitution in an individual case. Some local courts began to push the boundaries of their authority, independently proclaiming the invalidity of local rules and regulations that contradicted national law.3 Citizens used the new channels to protect their own interests. Civil and administrative cases multiplied. Farmers employed central authorities’ rule-of-law rhetoric to challenge illegal local exactions and land seizures. By the early 2000s, a cadre of public-interest lawyers and legal activists (such as Chen Guangcheng) had emerged. They fused public-interest lawsuits and savvy media strategies to push for deeper reform, with some resounding successes. In 2003, after a migrant named Sun Zhigangdied at the hands of city authorities in Guangzhou (Canton), three legal academics mounted a petition to the national legislature challenging the legality and constitutionality of the extrajudicial administrative system used to detain him. At the same time, extensive media coverage generated a public uproar regarding official abuses in Sun’s case and similar ones. Remarkably, central authorities yielded—annulling the entire detention system nationwide..... tibet.net/2013/07/11/china-at-the-tipping-point/
Posted on: Sat, 13 Jul 2013 07:28:13 +0000
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