China Comment

Energy, Environment, and Economy

Rule of Law- Not Human Rights

With Beijing receiving the 2008 Olympics, controversy erupted over China’s alleged human rights violations  and lack of democracy. Many Chinese often argue stability must be valued first before human rights can be guaranteed. While the Chinese might consider the issue too narrowly, international calls for democracy and human rights are a bit too broad and disorderly when unaccompanied by a theoretical basis that can apply to the Chinese situation. Instead of dwelling on broad concepts, China and international critics should join together to help China focus on promoting a standardized, streamlined, non-arbitrary Rule of Law.

China has progressed toward the rule of law. China currently has over 110,000 lawyers (as of 2000),  114,000 lawyers (as of 2005), and allegedly 165,000 registered lawyers (as of 2008). In 2002, the Chinese began having full-time government lawyers who advise courses of action. Still, as Xinhua states, China needs more lawyers. Its ratio of lawyers to populace is surprisingly low, so China has expanded schooling and opportunities to increase the number and quality of lawyers.

To bridge the gap of lack of legal expertise, China expanded its Xinfang system. According to Yale, “Some 10 million complaints are pursued through the traditional “letters and visits” (xinfang) system,” which can best be described as “aggrieved parties send petition letters or visit the xinfang office of a higher level of the administrative government in order to seek compensation, an apology or to correct mistakes made by a lower level of the administration…The xinfang office has its roots in the traditional top-down system of government where ordinary citizens rely on higher levels of government to alleviate their suffering” (China Labor Bulletin).

In China, extra-judicial solutions to problems are often practiced. “Some estimates based on available statistics reasonably suggest that there were perhaps four or five million administrative Xinfang petitions a year during the 1996-2004 period, but only around one hundred thousand administrative complaints filed with the courts” (Zhang, 4). According to the CFR, as of 2007: “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… according to some estimates only 0.2 percent of petitioners received a response in 2005.” That’s a huge problem.

The failure of Xinfang to fully address problems in China underscores a need for further establishment of legal tradition. When cases are administratively blocked or ignored, and root problems go unaddressed, the people lose, become bitter, and may join the over 70,000 protests that occur almost every year. 

A better developed court system can help take some of the stress off of would-be protest-situations such as the harrowing Weng’an Incident. One party secretary stated that although the girl’s death may have been the incident’s proximate trigger, “the deep structural reason is that there had been frequent infringements of citizen rights over the relocation of migrants, demolition of buildings and mining rights disputes.”

The Xinfang system and the courts had failed to properly deal with these problems, which contribuited to the rationale for people to riot. Indeed, in Weng’an’s aftermath, Beijing fired people in the Weng’an government for mismanagement.

Currently, many judges lack full judicial training and sophisticated legal knowledge since many are merely ex-military officers. (Also, Will Hutton’s comments… Although he appears to have a chip on his shoulder about China, so perhaps his data should be taken with a grain of salt.) (Also, for a note on the quality of Chinese lawyers and some theories on why a fair amount of Chinese lawyers are poor in quality, please read this anecdote [also please see the post’s comments for more nuanced views by Chinese].)

Still, if China follows its own Constitution (And see: Human Rights in China’s Constitution), the country would commit few “human rights abuses,” probably no more than the United States’. 

Fear appears to be the basis for China at times falling short of a “rule of law,” since many are locked up for “endangering the state” and “releasing state secrets,” which are often trumped-up charges that supersede other Constitutional rights of free speech in even worse ways than the US’ notorious Alien and Sedition Acts.

Before “human rights” can be guaranteed, China’s existential fears needs to be eliminated. The country, the state, and the party needs to gain confidence that following Constitutional laws can guarantee the “interests of the people.” By following its own Constitution instead of being ruled by fear, China can guarantee a standardization of law that will make living and litigating fairer- which would do more to guarantee human rights than mere foreigners organizing letter-writing campaigns or in governments and Human Rights Watch scolding Hu Jintao.

Conclusion

If China moves from being “ruled by law” to practicing “rule of law,” then grasping of nebulous concepts such as “human rights” and “democratization” will likely follow, since base-lying concepts of freedom of speech and other freedoms are already enshrined in the Chinese Constitution.

It would be nice if Human Rights Watch and Amnesty International and other NGOs dedicated to improving rights in China could focus more tightly on improving LAW in China. It appears a key failure in the Chinese system right now is lack of expertise. If money, time and energy is invested in developing such expertise, then China will more quickly see a modern legal culture emerge! 

Appendix:

* Longer descriptions of Xinfang are in Carl F. Minzer’s article and in Zhang, Taisu, “The Xinfang Phenomenon: Why the Chinese Prefer Administrative Petitioning Over Litigation.”

Zhang gives an interesting theory on the overuse of the Xinfang system, which only results in positive judgements for accusers 0.2% of the time, compared to 30% for administrative suits. As he argues:

“It may be possible to present the explanation proposed here as a more advanced version of the “rational choice” theory. This would necessarily be based on the long-term interests of petitioners: they might value their long-term relationship with local authorities more than their short-term interest in resolving the dispute…Since the heightened “adversarialism” of the litigation system would seem to damage that long-term relationship more than Xinfang petitioning, petitioners are willing to bear with a lower chance of short-term success” (Zhang, 31). 

The main problem with this argument though is, after the Xinfang petition fails, why don’t the villagers bring the problem to the local courts? And Zhang admits that is a puzzle. He eventually conclude that “dislike of “adversarialism” had simply prejudiced petitioners against litigation” (Zhang, 31) and “the best explanation for the Xinfang system’s superior popularity over administrative litigation is the latter’s inflexible and more adversarial procedure, which stems from its prohibitions against mediation and private trials” (Zhang, 32). Ultimately, Chinese citizens’ predeliction for Xinfang is an interesting phenomenon, and one worth further study.

* Chinese Law and Politics Blog also discussed the Xinfang System.

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23 July, 2008 - Posted by | China Law, China Stability | , , , , , , , ,

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