Monday, March 15th, 2010...12:52 am

[UPDATED] Court System in China – Is It Changing?

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“The effectiveness of using the court [against officials] is difficult to judge. The regime does not recognize the separation of powers between the judicial and executive branches, and local officials commonly intrude on court decisions. This practice especially applies to cases dealing with corruption of government officials. The defendants, who often have well-established social networks, try every possible tactic and mobilize every resources available to influence judicial decisions. In fact, Chinese newspapers report many cases of plaintiffs being punished by defendants. However, it it also not unusual for plaintiffs to win legal battles against corrupt leaders. Courts in China have much more freedom in dealing with civil disputes involving governmental organizations and government officials, especially on economic issues. Although far from perfect, the court system is in the process of changing in today’s China.”

— Tianjian Shi, Political Participation in Beijing


These words are written 13 years ago. I can’t stop thinking: has China’s court system been changing in the last decade?

Below is just my two cents. If you are reading this, please tell me what you think.

UPDATE:

Both the argumentation and the final somewhat optimistic outlook of court system’s influence seem to me very vague and unsubstantiated. It is true that China does not have separation of powers. The State Council, for example, under Article 89 of the Constitution, has the power to “adopt administrative measures, enact administrative rules and regulations and issue decisions and orders in accordance with the Constitution and statutes,” which means it de facto holds both legislative and executive powers (Corne 381). But this is not a necessary condition for lack of confidence in the judiciary. The French judicial service, for instance, is “essentially a branch of the civil service” and The High Council of the Magistry in France is “under the control of the political executive” (Shapiro 151-52), yet the French Conseil d’État has earned high prestige as “a guardian of the people against administrative illegality” with its doctrine of détournement de pouvoir more restrictive of administrative misconduct than anything similar in that vain in the common law. (Ibid 153)

Moreover, the reasons why Chinese are almost “court-averse” are more than that the well-established “social networks” corrupt government officials have, as the part in Shi’s book following the above quoted suggests. In discussing political participation by the poor, Huntington et al. noted that in England, U.S. and Western Europe, “not only the concept of popular political participation, but also… a variety of legal and political institutions, procedures, and techniques have been developed over the past century and a half to facilitate and regulate political organization and the expression of citizens’ preferences.” (121)

Take the administrative litigation system as an example, even though local governments’ infringement on citizen’s rights and welfare is not uncommon, such as land confiscation without proper compensation, or appropriation of public resources, etc; and even though the 1982 Constitution stipulates that “citizens who have suffered losses through infringement of their civic rights by any state organ or functionary have the right to compensation in accordance with the law” (Article 41:3), which was reiterated in 1987 General Principles of the Civil Law, and strengthened by the 1989 Administrative Litigation Law and 1994 State Compensation Act (all of which are in force before Shi’s book), the citizens were still reluctant to voice opposition to government actions through the legal channel. This, I believe, is due to one, the deep entrenchment of the Party in the state machines; two, State’s tight control on information, including rulemaking processes, etc.; three, the court’s lack of power both in actu and as defined by the Law.

Just briefly, the Party is so deeply entrenched in the government organs of all levels that there is a great overlapping of officialdom and Party members. And since the Administrative Litigation Law does not apply to the Communist Party, the government official could easily avoid any legal liability as long as he/she pose the action is carried out under the Party. (Ohnesorge 131) And unlike the American Administrative Procedure Act, which encourages public participation in administrative rulemaking process and facilitates citizens getting access to government-held information (consistent with the Freedom of Information Act), the Chinese law does not grant citizens such information. It is not until 2008 this tight control over government information was slightly released with China’s no. 492 State Council Order “Regulations on Open Government Information”. Third, volumes of books have been written on the weakness of China’s court, attributing it to the juxtaposition of too many laws, regulations, orders, rules, opinions, interpretations coming from different levels or branches of the state; the limitation of the courts’ power in interpreting law; and more specifically, in dealing with suits against government officials, the narrowness of the way the Administrative Litigation Law is defined also constrains the court’s ability to protect the citizen: it allows “challenges only to specific types of administrative action but not to administrative rules.” (Ohnesorge 147) In addition, the weakness of the court causes and worsens the problems of noncompliance and perfunctory enforcement of court decisions – even if the court rules in favor of the citizens and tried to impose punitive measures on the local government official, it is common that the courts decisions are ignored by the officials.

It is clear that without a credible judicial system, citizens’ attempt to check the government’s actions through legal means is severely hampered, and as a result, the unchecked corruption erodes the government’s legitimacy. Therefore, for future researches, I feel it would be useful to do a temporal comparison between citizens political participation through courts now – after several important judicial reforms – and back then, to test if methods to increase judicial power and restore the courts’ credibility would affect the extent of citizen’s political participation through the legal channel.

Reference:

Corne, Peter Howard. “Creation and Application of Law in the PRC.” The American Journal of Comparative Law 50, no. 2 (Spring 2002): 369-443.

Huntington, Samuel P. and Joan M. Nelson. No Easy Choice: Political Participation in Developing Countries. Books on Demand, 1999.

Ohnesorge, John K.M. “Chinese Administrative Law in the Northeast Asian Mirror.” SSRN eLibrary (November 2006). http://papers.ssrn.com/sol3/papers.cfm?a….

Shapiro, Martin M. Courts, a comparative and political analysis /. Chicago :: University of Chicago Press,, 1981.

Shi, Tianjian. Political Participation in Beijing. Harvard University Press, 1997.

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