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Access to Justice in China

Author: Jayshree Bajoria
April 16, 2008
This publication is now archived.

Introduction

Amid China’s extraordinary economic growth, the government has made some efforts to reform the legal system and improve methods for resolving grievances. But China’s legal system, a blend of traditional Chinese law with socialist and civil laws, ultimately remains under the complete control of the Communist Party. Leading international human rights groups continue to point to widespread abuses in the country’s judicial system. The ingrained flaws of the system have increasingly led Chinese citizens to seek justice through a variety of alternatives, from petitioning and mediation to political pressure using media and international rights organizations. Says Donald C. Clarke, a specialist in Chinese law at George Washington University: “Courts are not necessarily the place where you would go to seek justice in China.”

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Formal Legal Structure

There are four levels of courts in China. In order of jurisdiction, from local to national level, they are: the Basic Level, the Intermediate Level, and the Higher Level People’s Courts, with the Supreme People’s Court at the top. The country’s criminal justice prosecutorial agency, the procuracy, has a similar structure. Jerome A. Cohen, CFR adjunct senior fellow for Asia studies, says “it would be misleading” to think of China’s courts as similar to the U.S. court system. China’s Supreme Court, for example, is a large bureaucracy that spends just as much time issuing legislative-like interpretations and educating people in new state norms as in resolving individual legal disputes. 

Each level of court is essentially responsible to political operatives at that level. Local governments appoint judges at the corresponding level of the judicial structure and are responsible for their budgets and salaries. This allows for strong local protectionism, experts say, and in the event of politically sensitive cases, courts often refuse to hear them or leave them unresolved.

There is also a problem of proper legal defense. The Congressional-Executive Commission on China (CECC), created by the U.S. Congress to monitor governance issues in China, estimates there is roughly one lawyer for every ten thousand individuals in China as compared to a ratio of one to 550 in the United States. As part of its socialist policies, China requires its private lawyers to provide pro bono services. To increase the ability of the poor to access the legal system, the government also runs legal aid centers. But according to the U.S. State Department, the number of government lawyers providing legal aid remains inadequate to meet demand. In many rural areas, unlicensed, self-trained individuals are the only available legal advisers. Public interest law firms, usually based in universities or law schools, also offer legal services, but this is limited, say experts.

Carl Minzner, an expert in Chinese law at Washington University, says in a dispute that does not threaten the core interests of the state, party control, or the authority of local officials, “Chinese courts may not do such a bad job.” He stresses that “the Chinese court system is an integral part of the party state apparatus.” The U.S. State Department’s annual report on human rights, issued in March 2008, said corruption often influenced judicial decision making in China and safeguards against corruption were vague and poorly enforced.

Criminal Justice System

The State Department also says the Chinese criminal justice system is biased toward a presumption of guilt, “especially in high-profile or politically sensitive cases.” According to its latest report, the conviction rate for first-time criminal offenders was above 99 percent in 2006. The findings were among widespread human rights violations in China alleged by the State Department. Chinese officials challenged the U.S. report, saying the government safeguards human rights. They also accused the U.S. government of numerous human rights violations of its own.

The U.S.-based watchdog group Human Rights Watch says in its World Report 2008 that “torture, especially at the pre-trial stage, remains prevalent.” The report says law enforcement agencies “sharply limited and violated” the rights of criminal defendants in 2007 and defense lawyers faced chronic difficulties in representing their clients.

Human rights groups say China’s Public Security Bureau continues to make wide use of the reeducation-through-labor system, including for political and religious dissidents. The system allows police officials to detain people for three or four years without trial or the approval of a prosecutor. This helps police circumvent the entire criminal justice system to sentence people to “something that looks very much like a labor camp,” says Cohen.

Alternative Channels to Access Justice

Traditionally, the lack of independence by the judiciary has led Chinese citizens to use some of the following avenues to seek justice. Experts say, however, that none are particularly effective.

  • Petitioning for justice: One of the most common methods used by Chinese citizens is to lodge their grievances with government authorities through a system known as xinfang (“letters and visits”) petitioning. The roots of the xinfang system can be traced back centuries to Imperial China, when central authorities employed such petitions as a means of ensuring justice in individual cases, but also as an information channel on grassroots conditions and a performance review of local magistrates. According to the CECC 2007 report (PDF), there are 10 million to 13 million petitions filed every year as compared to 90,000 to 100,000 administrative lawsuits in China’s courts. Petitions, however, carry no legal weight to compel government offices to respond. As this Backgrounder points out, according to some estimates only 0.2 percent of petitioners received a response in 2005. An increase in the number of petitions or collective petitions by large numbers of people may result in central government sanctions against local officials. As a result, these authorities often block individuals from traveling to Beijing to present their complaints. Central authorities also don’t want these petitioners on Beijing’s streets during important national events. Human Rights Watch reported that during the National People’s Congress in March 2007, police in the capital conducted raids in locations where petitioners sleep, detaining about seven hundred people.
  • Mediation: Given the traditional Chinese preference for mediation, a huge number of civil disputes use this method. For small-scale disputes this is an important mechanism for resolution, say experts. Cohen says the success of mediation depends on how powerful and prestigious the mediator is. Often at the local level, disputes may be mediated by village officials or the local police.
  • Protests: In recent years, China has witnessed a sharp increase in social protests. Between 1994 and 2004, the number of protests annually rose from 10,000 to 74,000. There has since been controversy over counts, but some official statistics place the number as high as 87,000 for 2005. China experts say local courts usually funnel out or block politically sensitive issues. Lawyers, too, may not accept such cases, inducing citizens to resort to protests to express their displeasure and call attention to their grievances. In early 2008 farmers intensified protests against forced land seizures and called for land reform.

    Since China’s invasion of Tibet in 1950, Tibetans have used social protests to bring attention to grievances against the Chinese government. The Chinese authorities frequently respond by detaining or imprisoning the protesters, finds the 2007 CECC special report on Tibet, including those involved in peaceful protests. Chinese authorities frequently charged those detained with "splittism," and says their behavior endangers state security, according to the CECC report. Legal safeguards for Tibetans detained or imprisoned were inadequate, says the U.S. State department’s 2007 report on China and Tibet. The report says under Chinese law maximum prison sentences for crimes such as “endangering state security” and “splitting the country” are fifteen years for each count, not to exceed twenty years in total, and “such sentences are frequently given to Tibetans for alleged support of Tibetan independence regardless of whether such activities involved violence.” The Chinese government has frequently denied such allegations and says it guarantees the democratic rights of Tibetans. Chinese authorities say that as an ethnic minority, Tibetans enjoy preferential treatment in laws and policies.

  • Media/Human Rights Organizations:  China’s media remains fairly closely regulated, but there is growing diversification and increased investigative reporting by local media. Aided by widespread use of the Internet, the media has become an avenue for citizens seeking to air their grievances and create pressure for action. Media and human rights groups are especially sought after to raise awareness of criminal prosecutions brought against political opponents. Washington University’s Minzner says when the state brings a case against a well-known dissident under charges such as subversion of state power, going through the legal court system is almost certain to be futile. In most such cases, he says “top-level authorities may have already issued internal directives to the court as to how these issues should be resolved.” While media are playing an important role in exposing injustice, at the same time their coverage reinforces party oversight (PDF) of the courts, argues Benjamin L. Liebman, director of the Center for Chinese Legal Studies at Columbia University. When the media highlights a politically sensitive issue, party officials turn to the courts to issue a judgment that quiets popular sentiment. Thus, the media’s ability to influence the courts reflects the degree to which assuaging popular demands for justice remains more important than deciding cases according to legal and procedural norms, Liebman writes.
Road to Reform

China began court reform in 1978 with the reconstruction of its legal system. In 1999, the process got a boost when the Supreme People’s Court issued its first five-year plan for reforming China’s courts. In 2005, another reform plan included the review of death-penalty cases by the country’s highest court. Amnesty International estimates that at least 1,010 people were executed in China in 2006.

Experts say significant legal reform has been undertaken, including legal education and training of judges, and increased efforts to provide channels for people to resolve their grievances. But the courts continue to be subject to party leadership. CFR’s Cohen suggests transferring the authority to appoint and finance lower level courts from the local to the national government will help “get rid of local protectionism.” The 2005 reform plan does mention the need to address centralizing court appointments, but proposes doing so only within certain geographic areas and not nationally. The plan also raises the topic of centralized financing of courts but fails to propose any specific steps.

Minzner says political and structural reforms are also essential to make the judiciary a more independent institution. Experts agree that development of courts and professional judges could mean greater challenges for China’s ruling entities. Says Liebman: “The most significant development regarding China’s courts is that their role in Chinese society is increasingly contested.”

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