China news tagged with: legal reform (63)

• Jiang Ping (江平): “China’s Rule of Law Is in Full Retreat”

  

  The China Law Prof Blog has posted a translation of a recent speech by prominent legal scholar Jiang Ping:

  Strictly speaking, in the 30 years of reform what I did was call for private rights. I chose civil law and private rights because those areas were weak in China, or rather in a China with such strong public powers, private rights were always in a weak position. Private rights include the rights of private enterprise, of private property, and perhaps even broader personal rights.

  Today, I will just mention three issues, but these are not the same three you all just suggested. The first private right I will mention is the Shanxi coal mine problem [private coal miners were encouraged to invest then their mines were taken by the state at low or no compensation]. The Shanxi coal miners demonstrate a violation of the rights of private property and private enterprise, a brazen violation of constitutional guarantees.

  The second is the Li Zhuang case [the defense lawyer convicted of inciting false testimony in the Chongqing mafia crackdown]. When Wu Xiaoji brought over Li’s defense lawyer to talk to me, we chatted for a long time about what happened in court that day and the entire procedural history of the case. After hearing about it, I was furious. No matter what you think about it, from the most basic level, procedural justice was violated. The evidence was not brought out and many of the witnesses did not appear in court. From the perspective of evidence, that case had serious problems.

  The third is the Liu Xiaobo case. When I heard about the Liu Xiaobo verdict, I felt it was a crime of speech — a very dangerous thing. China has a long tradition of criminalizing speech, and if we let that tradition continue today, and if those with a sense of justice can’t express their views, then our problems are just too serious. Or perhaps, for those of us engaged in the rule of law, if even we take a hands-off approach — if there is not a single voice of justice among us — then I think that is really dangerous.

  So, looking at China’s current situation, I think we are in a period where the rule of law is in retreat. Or perhaps, building the rule of law, judicial reform, and political reform are all moving backwards. This is my first thought.

  My second thought: In the last two books I published, I used the term “cry out” in the title. The first book was called “What I can do is cry out.” I recently published a book that I edited by hand, putting together some of my prior work in a careful compilation that I called “Private Rights Cry Out.” This latest is part of a series of 100 works of top people in the humanities; in that series I am the only one from the legal field. Why did I choose the word “cry out,” and why in the last two years? Of course, I have been enlightened by Lu Xun’s example, but it is not only that. I think that choosing “cry out” is important because the situation has become more oppressive. That is to say the environment outside has become more and more difficult. In those circumstances, one must “cry out.” No matter what words you choose, when the circumstances are urgent, you must call out with your voice.

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  • March 2, 2010 11:07 AM

• China Daily: Let Us in on the Secrets

  

  A China Daily editorial calls for revisions to the State Secrets Law, which has often been criticized for being too vague and ambiguous in its definitions:

  The 1988 legislation needs an immediate reshuffle. It is a poorly conceived work of jurisprudence because it allows state organs and their functionaries virtually unlimited authority in defining and maintaining so-called “state secrets”.

  Under the current law’s definition of a “state secret”, official establishments and their staff can easily stick that label to everything they want to hide from the public.

  Even township officials can classify information in the name of the state. Such information, once classified, can be withheld forever.

  Each of these major defects will, to a degree, be modified in the proposed revisions, which is why we are anxious to see them pass legislative scrutiny.

  Read more about the state secrets law via CDT.

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  • February 26, 2010 10:23 AM

• Stanley Lubman: After Obama Visit, Legal Experts Dialogue Could Help Expand Citizens’ Rights in China

  

  On the Wall Street Journal’s China Real Time Report blog, UC Berkeley Law Professor Stanley Lubman writes about opportunities to push legal reform in China in the wake of President Obama’s visit and the subsequent agreement to continue the U.S.-China Legal Experts Dialogue:

  It is not too soon to consider possible agendas for the next Dialogue. In my view, the list should include creation of a program to expand U.S. graduate study opportunities for Chinese legal scholars and officials; increased legal aid to Chinese citizens through legal aid centers at universities and NGOs; and increased cooperation on environmental issues.

  Despite the sharp differences between Chinese and American points of view on many human rights issues, my own experience (working with The Asia Foundation on law reform projects) as well as that of others suggests that there can be fruitful exchanges on other legal issues. For example, a program funded by the US Department of Labor and conducted by American NGOs working with Chinese counterparts contributed to the process of drafting a Labor Contract Law that was adopted in 2008. Similarly, after foreign NGOS stimulated programs on government transparency and administrative law and procedure, the State Council promulgated Open Government Regulations in 2008, and China’s first provincial-level Administrative Procedure Regulation was adopted, in Hunan Province. Progress of this kind can only be incremental under current circumstances, but as a recent report notes, “[M]any foreign and Chinese observers note that awareness of legal rights in many areas of PRC society is growing.” (Source: Thomas Lum, “U.S.-Funded Assistance Programs in China,” Congressional Research Service 7-5700, April 24,2009, pdf available here.)

  In planning and preparing for the next Legal Experts Dialogue, The State Department should involve American NGOs, law professors and practicing lawyers with experience in working on legal development programs in China.

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  • December 1, 2009 9:18 PM

• Stanley Lubman: Chinese Law Reform on the PRC’s 60th Birthday

  

  Stanley Lubman of U.C. Berkeley’s Boalt School of Law writes about the state of legal reform in China for the Wall Street Journal’s new China Real Time Report blog:

  Ambiguities in policy toward law are clear: The Chinese Communist Party has never accepted judicial independence as an official goal. Its chief priority for the last thirty years has been economic development, which is the most important basis for its legitimacy, and preventing the occurrence of political or social events that threat that legitimacy.

  At the same time, the leadership has promoted the increased professionalization of the judiciary and allowed more space for the growth of the legal profession. It has allowed some expansion in civil society, notably favoring the growth of non-governmental organizations concerned with environmental issues. It has recognized the need to make government more transparent, as shown by the adoption of Open Government Regulations last year and increased experimentation with expanding public participation in legislation and administrative rule-making. Changes in property law are being considered that would expand the rights of peasant landholders and urban residents and limit unlawful expropriation by local officials acting in concert with property developers.

  The concern for maintaining social stability, however, currently outweighs any desire for legal reform, except to the extent that law and the courts may be used to punish and discourage official corruption.

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  • October 29, 2009 8:11 PM

• A Bit Too Much Pollyanna? Brookings’ Report on Legal Development in China

  

  On China Law and Policy, Elizabeth Lynch critiques a new report from the Brookings Institute on legal reforms in China:

  Li and Lee offer four developments that they claim bode well for legal development in China: (1) an increasing body of law, with new laws being written and old ones amended; (2) the astronomical growth in the number of lawyers; (3) increasing economic autonomy and a greater sense of professionalism in the legal profession; and (4) the rapidly rising number of legally-trained government officials.

  Li and Lee cite the huge number of laws that China currently has on the books (231 individual laws, 600 administrative regulations, 7,000 local rules and regulations, and a sizeable number of departmental regulations), but only pay passing attention to China’s difficulty in implementing laws on the local level, arguably the most important aspect of a functioning legal system. To be sure, drafting laws is the first step; but without meaningful and consistent implementation, the value of such a large body of law is questionable.

  Additionally, Li and Lee look to the increased professionalization of the legal profession as a positive sign. It is true Gavel-LawBookthat the Chinese bar has become more professionalized and lawyers are no longer employees of the State as they were in the 1950s. But Li and Lee make no mention of the fact that the All China Lawyers Association and local bar associations are government-controlled and answer to the Ministry of Justice (MOJ). Prof. Jerome Cohen of NYU’s U.S.-Asia Law Institute has consistently commented on this lack of independence of the Chinese bar and has noted the role that the MOJ has played in influencing bar associations to punish rights lawyers that go a bit too far for the government’s taste.

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  • October 19, 2009 8:39 PM

• The PRC Legal System At Sixty

  

  Jerome Cohen, a professor of law at New York University, takes a look at the PRC’s legal system at the East Asia Forum. Cohen comments that while the PRC has made impressive strides in the area of legal reform, problems like corruption and local protectionism are still endemic, leaving room for but dim “prospects for immediate significant reforms.”

  In early 1978 there was almost no contemporary legislation, nor was the PRC a party to the many multilateral and bilateral agreements necessary for successful international relations. The courts and the procuracy were a shambles, the legal profession long since abolished, as was the Ministry of Justice. Legal education and scholarship had barely begun to revive. Today, thirty years later, the situation has dramatically improved. A multitude of new laws and regulations are now on the books, with more to come. These norms help to guide the country’s prodigious economic achievements and foreign investment and technology transfer. The PRC has also adhered to most of the multilateral treaties that grease the wheels of international relations and commerce and has a dense network of bilateral agreements with all major countries.

  [...]

  Yet, the ‘socialist rule of law’ invoked by Party and government leaders is a far cry from any of the rule of law’s commonly understood meanings. Despite the importation of Western norms and forms, including constitutional endorsement of the rule of law, human rights and property rights, the Party makes no bones about its airtight control of the judiciary and the legal system generally. Its central political-legal committee and local Party counterparts ‘coordinate’ the work of the courts, the procuracy, the Ministry of Justice, the legal profession, and the regular and secret police.

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  • October 1, 2009 8:59 PM

• Lawyer’s Detention Shakes China’s Rights Movement

  

  The New York Times looks at the impact of Xu Zhiyong’s arrest for the rights movement in China, especially as it comes on the heels of a broader crackdown on lawyers who defend civil rights and NGOs:

  Although rights lawyers and grass-roots social organizations have always been tightly controlled here, the pressure has intensified in recent weeks. More than 20 lawyers known for taking on politically tinged cases were effectively disbarred, and the police raided a group that works to ease discrimination against people with Hepatitis B.

  Last week, China’s justice minister gave a speech saying that lawyers should above all obey the Communist Party and help foster a harmonious society. To improve discipline, the minister said, all law firms in the country would be sent party liaisons to “guide their work.”

  But given Mr. Xu’s international stature and reputation for working within the law, legal scholars both in China and abroad say his prosecution suggests a new level of repression.

  [...] After 30 years of reform, China’s legal system is at a critical juncture. Law schools continue to pump out thousands of graduates each year, and the courts, even if imperfect, have increasingly become a forum for resolving disputes. Late last month the Supreme People’s Court announced reforms intended to markedly reduce executions.

  But as lawyers here discover, there are limits to China’s embrace of judicial reform.

  » Read more
  • August 9, 2009 6:39 PM

• Dick Thornburgh: China’s Harassed Lawyers

  

  Former U.S. attorney general Dick Thornburgh writes an op-ed in today’s New York Times about the plight of China’ rights lawyers, who face escalating attacks and administrative barriers to their work:

  These setbacks are part of a new, negative trend. Lawyers who take on sensitive cases or who seek redress for abuses committed by Communist Party officials are suffering a consistent pattern of abuse, including arrest and prosecution, harassment, suspension of their licenses or disbarment, and violent attacks.

  The activism of these lawyers is an irritant to the Communist Party, which seeks to project an image of “social harmony” and an aspiration to develop the rule of law, while trying to maintain its ability to control legal and judicial decision-making. This seeming contradiction can be explained in part by the party’s desire to channel the grievances of an increasingly rights-aware citizenry toward the courts as a pressure release valve. In this way lawyers play an important role in maintaining social stability.

  But abuses against lawyers can only exacerbate social unrest. Last year, according to official statistics released by the Ministry of Public Security, more than 90,000 protests took place in China. The Communist Party should realize that the overall benefits of a functioning legal system far outweigh the embarrassment caused by holding officials and institutions accountable.

  Read also lawyer Teng Biao’s op-ed on this subject in yesterday’s Washington Post.

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  • July 28, 2009 10:46 AM

• New Round of Judicial Reform

  

  Caijing reporter Qin Xudong writes on the urgent need for legal reform in China and the problems ahead.

  But certain protocol common in developed court systems might be in store. A subtle re-orientation can be sensed in the details of the new reforms. For example, former reforms focused on the professionalism of judges by replacing uniforms suggestive of autocratic authority with more modern robes. This time, the emphasis is on “popularization of law” and “democratization of law,” reminding judges to not forget the “mass route.”

  The CPC’s opinion stresses the concepts of “service” and flexibility, while glossing over other common legal concepts like stability and predictability. Examples of this can be seen in the reaction of both the courts and the procuratorates to China’s sweeping economic downturn. The People’s Supreme Court has ordered cautious enforcement of the law when handling indebted enterprises that still have a promising future. In Guangdong Province, where the slowdown has taken some of its harshest tolls, the local procuratorate went so far as to encourage benevolent neglect for accused corporate leaders if their crimes were not severe.

  These examples also tie into the heavy stress placed on the courts’ mediation mechanism, i.e., “executing laws according to local characteristics rather than universal rules of fairness and equality.”

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  • January 24, 2009 9:05 PM

• James V. Feinerman: In China, Justice in Reverse

  

  In the Washington Post, James Feinerman writes about the progress, or lack thereof, in the development of rule of law in China over the past thirty years of reform:

  For several years now, however, there has been considerable backtracking. Setbacks in the rule of law have occurred in many areas. Most significant has been the systematic intimidation and prosecution of the few Chinese lawyers willing to represent unpopular clients in politically sensitive cases. Defense lawyers have been “warned,” placed under house arrest or imprisoned on trumped-up charges. Some have even been beaten and severely injured as warnings to others.

  [...] Today in China, tens of thousands of incidents ranging from isolated protests to widespread riots requiring police and paramilitary intervention occur annually. These stem from the failure of the legal system to address unauthorized land seizures, illnesses and deaths caused by contaminated products, and environmental disasters that result from China’s rapid, unregulated industrialization and that affect millions of citizens. Absent opportunities for redress in the country’s tightly controlled lower-level courts, few peaceful alternatives to violent disturbances exist for airing grievances.

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  • December 18, 2008 11:29 AM

• Jerome Cohen: Thirty Years of Chinese Legal Reform

  

  From the Wall Street Journal:

  As the 30-year anniversary of China’s reform and opening draws near, the Foreign Correspondents Club of Hong Kong Thursday hosted China legal expert extraordinaire Jerome Cohen, who discussed the development of China’s legal system over the last three decades and its future.

  Below are some highlights from the talk:

  Thirty years ago if you looked around it was hard to find any of the conventional indicia in China of what constitutes a legal system. You couldn’t find much legislation…there was nothing in terms of guiding norms, there were no relevant international agreements…. The courts were in shambles after the Cultural Revolution and the legal profession was demolished….Bookstores had no sections for law. It was hard to say China had a legal system.

  [...] Now thirty years later, we look and we find a vastly different formal and actual situation.

  If you look at personnel, China now has roughly 200,000 judges…. 160,000 procurators (prosecutors), 150,000 lawyers…. And they have a legal education system that is growing — maybe too fast — with over 600 law departments and law schools cranking out several hundred thousand law graduates, and several hundred thousand people are taking the bar examination every year.

  [...] You have an interest group …that’s promoting something called a credible rule of law [and] Western-style rule of law, at least in form.

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  • December 4, 2008 10:24 PM

• Gao Yifei: Priorities In China’s Judicial Reform

  

  Written by Gao Yifei (高一飞), a law professor at Southwest University of Political Science and Law, from World-China Bridges:

  Since the first “Five-year Reform Outlines for People’s Court” promulgated in 1999, China’s judicial reform has now gone through nearly 10 years. But though it has made relatively large progress, this judicial reform has also obviously erred on the direction it has taken. This is manifested in its emphases on structural reform over procedural reform, judges’ professional quality over moral quality, and judicial independence over judicial restraint. It is precisely because of this that judicial corruption in China has remained unresolved even as its judicial efficiency has increased. Due to the expansion of judicial work covered, ordinary people have actually felt that judicial corruption has become more and more serious.

  On this, I agree with Supreme Court President Xiao Yang that the fundamental problem is judiciary’s localization, administratization, and deprofessionalization. Nevertheless, the essence of these three big problems is not a judicial problem itself; it is, rather, a problem of political structure, and to resolve such a problem, the duty is heavy and a long way to go. In many respects, reforming the judiciary itself can only slightly affect the whole political structure. Then, does this mean that judicial reform under existing political structure can accomplish nothing? I believe something can be accomplished, but we should adjust the direction of present judicial reform to reflect proper reform priorities. We can consider the following three aspects:

  1) More emphasis on procedural reform over structural reform

  Usually, we divide judicial reform into structural and procedural reforms. Judicial structure is the organization system of judiciary, while judicial procedure refers to the specific steps and rules that judicial activities should adhere to. The vast majority contents of the two five-year reform outlines issued by the Supreme Court deal with judicial structural reform, while contents relating to judicial procedure are rare. Is this emphasis on structural reform over procedural reform reasonable? How should we handle the relationship between the two? Should we really wait until after the structure completely straightened out that we then pay more attention to improve procedures?

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  • August 3, 2008 7:50 AM

• China’s Top Court Rejects 15 Percent of Death Sentences

  

  As activists advocate for China to put an end to its use of the death penalty as it prepares to host the Olympics, the Supreme Court announced that it has rejected 15% of death sentences passed on from lower courts. But a court official said that China “doesn’t possess the conditions” to abolish the use of executions. From Reuters:

  China keeps secret the number of prisoners it executes, but international human rights observers have no doubt it judicially kills more than any other country — with estimates of executions somewhere between 1,000 and 12,000 a year in recent times.

  But from the start of 2007, China’s Supreme People’s Court took back power of final approval on death penalties, relinquished to provincial high courts in the 1980s, and promised to apply the ultimate punishment more carefully.

  In a rare glimpse into how the new rule is working, the president of the top court’s criminal law chamber, Huang Ermei, said that in 2007 it rejected 15 percent of death sentences passed by lower courts, according to the China News Service on Saturday. She gave no hint of the overall number of executions.

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  • March 7, 2008 9:43 PM

• China: Creating a Legal System for a Market Economy

  

  From SSRN:

  Abstract: Since the early 1990s, China has come a long way in legislating the foundational rules for its reformed economy. Virtually all of the important areas-contracts, business organizations, securities, bankruptcy, and secured transactions, to name a few – are now covered by national legislation as well as lower-level regulations. Yet an important feature of a legal structure suited to a market economy is missing: the ability of the system to generate from below solutions to problems not adequately dealt with by existing legislation. The top-down model that has dominated Chinese law reform efforts to date can only do so much. What is needed now is a more welcoming attitude to market-generated solutions to the gaps and other problems that will invariably exist in legislation. The state’s distrust of civil-society institutions and other bottom-up initiatives suggests, however, that this different approach will not come easily.

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  • March 5, 2008 4:08 AM

• 24 Hours at the Public Hearings Over Mobile Phone Roaming Charges

  

  

  Hao Jingsong is a law student at the China University of Politics and Law. He’s challenging the legal system by taking on some well-known controversial cases, including the South China Tiger case. He was the first to announce he would bring a lawsuit against Farmer Zhou, the provider of the tiger photos. Public hearings are quite a new thing in China. Mobile phone roaming charges are apparently a big enough deal to be on the national censor’s list. The following is from Tianya Community, translated by CDT:

  On the evening of January 21, Beijing Legal Evening News reported that on January 22 the public hearings for mobile phone roaming charges would be held in the Henan Building. Then the National Development and Reform (NDRC) tried to block information of the exact location and time of the hearings from the media.

  I called the front desk of the Henan Building. The operator said all rooms were taken. The Henan Building is owned by Henan Province. I called up my friend working at the Beijing office of Henan Province and asked for a room reservation at the Henan Building. Five minutes later, my friend phoned me and said it’s all set, room No. 2015.

  At 11:00 pm that night, I stayed in the Henan Building at No. 28 Huaweili, Panjiayuan Beijing.

  At 8:00 am on the 22nd, my assistant arrived with camera equipments. At 8:20am, China Radio International interviewed me by phone for 10 minutes. Then after breakfast, my assistant and I went to the first floor. In the lobby, about 30 reporters were there. Two of us walked out of the building to shoot footage of the road. Then, a girl followed me closely and asked, “Aren’t you Hao Jingsong?” I answered yes. Soon, seven or eight reporters surrounded me. My assistant was shooting a scene of the Henan Building. Reporters raised their cameras to take pictures, too. Some reporters suggested shooting inside the lobby since there were hearings billboards. We returned to the hall. I stood next to the billboard, took out and raised a printed banner, “Public Hearings” in my left hand, then raised a black vase in my right hand. Reporters started to photograph me. A reporter asked, “is this your protest against the public hearings”? I said, “No. This is my creation of Acts of Art, named ‘Black Vase and the Hearings’. Black stands for a hidden, secret, not open, black-box operation.” Several reporters questioned me in turn. I responded one by one. After half an hour, some other reporters went with me to my room for interviews.

  At 10:30 am, my assistant and I took the elevator to the 4th floor, where the hearing was to be held in the conference room. Some reporters were waiting. Two security guys stopped all of us.

  At 12:00 pm the pre-meeting of the hearings ended, and the representatives streamed out to the the restaurant on the second floor for lunch. Two of us followed them there. At the door we were blocked by a tall man. I told him that I was staying in the Henan Building, and just wanted to have lunch, so I asked him to let me in.

  The men said, “We have booked the entire restaurant.”

  I asked him, “What is your Danwei?”

  He replied, “ The National Development and Reform Commission.”

  We went to another restaurant nearby. An hour later a TV reporter called me for an interview and said he was at the door of my room. After returning to my room, we arranged the furniture, set the camera and started the interview. Thirty minutes later we finished.

  At 17:40 pm, I arrived on the 4th Floor with my assistant. The hearings had just ended. After a depressing, long day, 70 or so reporters flowed into the conference room. One reporter complained, “these guys treated us like entertainment reporters.”

  We got in. The hall was about 300 square meters. We took a good position and my assistant set the camera at the third row. I saw there were eight video cameras in the first front rows. I counted there are another seven rows behind me. Each row had 25 seats, thus a total of 150 seats. At the front there were about 50 seats at the podium.

  I was prepared to ask questions. I asked my assistants to go back to my room to take the written reply from the NDRC to my public letter. Five minutes later he came back and told me in the elevator he bumped into three representatives with cards hanging around the necks. One representative said, “Let’s go for dinner, afterward we’ll head for the press conference.” Another responded, “Yes, dinner first. Let them wait.”

  We waited for a full 40 minutes. At 6:30pm, three representatives showed up silently. After they were seated, they announced their own names: Cao Changqing, the Secretary of NDRC ; Xu Kunlin, the Deputy Director of the Division of the NDRC; Wang Tiefu, the Secretary of the Ministry of Information Industry.

  After a brief introduction, reporters began to ask questions. I raised my hand many times, but the three officials pretended not to see me. Then the clock said 6:55 pm, and Cao Changqiang said this is the last question. A female reporter was called on.

  I could not wait any longer and decided to take action and I notified my assistant. Cao Changqiang just finished answering the last question and was about to call the end of the hearings. The moment he opened his mouth, I jumped onto the chair. The three officials apparently did not foresee that there would be such a scene, their faces expressed shocked.

  I raised the written letter of the NDRC in my hand, and started my speech, “Hello, Cao Changqiang Administrator! I am Hao Jingsong, a citizen of the People’s Republic of China. On January 4 this year, I wrote to the NDRC requsting attendance at the mobile phone roaming charges public hearings. On January 16, the NDRC gave me a written reply and said, ‘Due to limited seats and room you cannot attend the hearings.’ I have observed that the venue can accommodate 200 individuals and the actual hearing had fewer than 50 representatives. I think the NDRC was lying about the limited seats. Please give me an explanation.” Cao Changqiang maintained silence, while Xu Kunlin loudly said, “We are open for a press conference. You are not a journalist.” I replied, “I am a citizen and a journalist, too. The Internet is a platform for me to spread information!” Xu Kunlin angrily faced the security guard of the conference room and loudly demanded, “Is this how you guarded the door?! Anyone is allowed in?” Then, the three officials stood up and quickly left the venue.

  That night, I left the Henan Building.

  (Photo from Southern Metropolis Daily, shows Hao holding the “Public Hearings” sign and black vase.)

  Related CSM report: China Mobile lies in wait for economic slump

  » Read more

  • January 29, 2008 10:14 PM

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