Supporters protesting censorship of the New Year editorial outside the gates of the Southern Weekly on 7 January 2013. Image source: Wikipedia.
Rebecca Liao is a writer and corporate attorney based in Silicon Valley. She has written about China for The Atlantic, n+1, San Francisco Chronicle, Dissent Magazine, the LA Review of Books, Tea Leaf Nation, Times Literary Supplement and Foreign Policy. She founded and writes for The Aleph Mag, a digital magazine about art, culture and Chinese law and politics. Rebecca has been interviewed on China by HuffPost Live, Deutsche Welle and CCTV America. A full archive of her writings appears here. — The Editors
A year has passed since the Southern Weekly 南方周末 incident, in which protests erupted online and in Guangzhou, over censorship of an article published in the prominent newspaper as its 2013 New Year’s message. The much-anticipated editorial advocated for the rights and freedoms enumerated in China’s constitution. Guangzhou had significantly tightened security around the protest sites this year in case of any repeat demonstrations. They needn’t have worried: almost no one showed up. More importantly, neither Southern Weekly nor the influential political magazine Yanhuang Chunqiu 炎黄春秋, which was also punished for a pro-constitution New Year’s feature in 2013, repeated the offense in January 2014.
Instead, it was the turn of Seeking Truth 求是杂志, the official Communist Party journal, to attract public notice for defending China’s constitution and promoting legal reform. The publication praised the rule of law and called on people to trust the nation’s legal system, all the while striking an unabashedly populist tone. It presented the state as wanting to develop a legal culture in which, ‘people fully believe in the law and consciously use the law’. Quoting President Xi Jinping, administrative agencies were described as ‘the main bodies for the implementation of laws and regulations’, required to ‘take the lead in safeguarding the public interest, the people’s interests and social order’. Further, law enforcement and courts ‘must persist in making the satisfaction of the people an objective’.[1] In other words, the legal system is where the people are heard—a voting booth with Chinese characteristics.
Since President Xi named constitutionalism and the rule of law the major ideological issues of the moment, the Party’s position on both has come off as inconsistent, almost bipolar. On the one hand, the idea that law could be above the Party is considered Western propaganda. The People’s Daily accused liberal constitutionalists of trying to ‘throw China off the track of socialism’.[2] According to Red Flag 红旗, affiliated with Seeking Truth, legal reformists are ultimately seeking to ‘abolish the leadership of the CCP’.[3]
The sentencing in January 2014 of constitutional activist Xu Zhiyong 许志永 to a four- year prison term made clear that the party-state would continue to quarantine organized human rights efforts from legal reforms. And yet, President Xi, representatives of the Supreme People’s Court and other official spokespersons have declared that nobody is above the law and that the state must and will uphold the constitution. As many constitutional activists and commentators have noted, the Chinese constitution does in name protect freedoms of press, speech and assembly.
Seeking Truth sought to set the record straight: never mind the crossed wires to date — the central idea is that law is the greatest political device the Party will afford the Chinese people. While the Chinese government would never entertain electoral democracy, it wanted to implement an effective feedback system for the sake of greater social stability. All that political energy and resentment against government injustices and corruption should therefore be addressed through legal channels. Protests and mass petitions were unsightly and unproductive.
Given the evidence of political arrests and official interference in courts, the article appears to be a somewhat cynical way of offering false hope to those with legitimate grievances. If that is the case, the Party should be much more careful with its rhetoric. Legal proceedings directly challenging the actions of China’s crucial administrative agencies are becoming more popular and institutionalised. Since the enactment in 1990 of the Administrative Procedure Law (APL), which grants citizens the right to sue administrative agencies, the number of such cases has increased tenfold. Though not as popular, citizens may also now file complaints directly with an administrative agency’s supervisory body.
It’s plain to many that such legal channels need to be vastly improved. According to the Supreme People’s Court, China’s highest judicial body, about forty-four percent of administrative litigation cases were withdrawn in 2010. This continues an upward trend of cases never reaching a final decision. Of all cases accepted for litigation, plaintiffs win less than ten percent of the time.[4] This low success rate can be explained by the push since 2006 to settle lawsuits outside of court, or at least to move the parties to mediation. Still, considering that regulatory agencies and lawsuits against them are the linchpin of China’s legal infrastructure, the usage numbers remain alarmingly low.
Two main things discourage Chinese people from entering the legal system: Party interference in court proceedings and an insufficiently strong judiciary. Last November’s Third Plenum, which outlined President Xi’s agenda, addressed both. Proposals included establishing judicial jurisdictions that are different from those overseen by administrative bodies, so as to reduce the influence of party cadres in the latter. The court system will become even more hierarchical so that lower courts answer to superiors in the judiciary instead of the local government, a great locus of corruption. Most ambitious of all, trials will be open.[5] All of these potential initiatives are meant to instill confidence in the Chinese people that the courts will afford them due process and a real chance at redress and justice.
The Standing Committee of the National People’s Congress, China’s highest legislative body, is now considering an amendment to the APL that takes small steps towards that goal. The new law would allow for more cases that involve infringement of rights, particularly property rights. In addition, an administrative agency’s refusal to comply with a court ruling will be made public.[6]
As law matures in China, it will increasingly serve the political interests of the people, not just the state. So even if the latter withdraws support for that shift in the power dynamic, reversing it will not be easy. Let’s hope the Party stays on message.
Notes
[1] Chen Yiping 陈冀平, ‘谈谈法治中国建设’ (On Building the Rule of Law in China), Seeking Truth 求是杂志, No.1 (2014), http://www.qstheory.cn/zxdk/2014/201401/201312/t20131230_307473.htm
[2] Yuan Chunqing 袁纯清, ‘山西省委书记:领导干部必须增强政治定力’ (Party Secretary of Shanxi Province: Leaders Must Enhance the Strength of Their Political Convictions), People’s Daily 人民日报, 24 September 2013, http://news.163.com/13/0924/03/99GOJ16V00014AED.html
[3] Wang Tingyou 汪亭友, 对宪政问题的一些看法 (A Few Thoughts on the Issue of Constitutionalism), Red Flag 红旗, 9 June 2013, http://news.xinhuanet.com/politics/2013-06/09/c_124840106.htm
[4] He Haibo 何海波, ‘Litigations Without a Ruling: The Predicament of Administrative Law in China’, Tsinghua China Law Review no. 3(2011) p. 263, http://tsinghuachinalawreview.org/articles/PDF/TCLR_0302_He.pdf
[5] 授权发布：中共中央关于全面深化改革若干重大问题的决定 Authorized release: CPC Central Committee on deepening reform of the full number of major issues, Xinhua News Agency 新华社, 15 November 2013, http://news.xinhuanet.com/politics/2013-11/15/c_118164235.htm
[6] Amendment to Administrative Procedure Law hailed in China, Xinhua News Agency 新华社, 24 December 2013, http://news.xinhuanet.com/english/china/2013-12/24/c_132993358.htm
