20 March 2008

Chinese Legal Trends

Taming China is absolutely necessary for the future economic and national security interests of the United States and most of the rest of the world. There is no need for China to be a clone of Western political and legal regimes. But, a China that is militarily aggressive, can't participate in an international economy, or is crushingly unjust towards its own people is a threat to the world.

It isn't always clear if this is a plausible hope, or an attainable goal. Aggressive claims directed towards Taiwan buttressed by China's prior conquest of Tibet and continued low level military engagements with India, the ambiguities of Chinese law on economic matters, and China's mass use of the death penalty in circumstances where the quality of the due process afforded to defendants is questionable, for example, cast doubt on China's future.

It is also not always easy to determine how American foreign policy and the foreign policy of other states can engage China and nudge it in a positive direction, because it is hard to understand what is really going on. More so than any other nation, with the possible exception of Japan, a Western observer does not learn enough from official legal pronouncements and domestic news reports to get a reliable understanding of what is really happening in the legal and institutional environment there. The disconnect between official statements and actual policy, the characteristic brevity of official statements, the relative independence of Chinese legal and institutional norms from either Western or Eastern European traditions (the article notes that "China has not attempted to mimic some ideal Western legal order, much less import wholesale a liberal democratic rule of law."), and the impenetrable doublespeak of a state controlled propaganda driven media climate, all add to the challenge.

An article by Randall Peerenboom discussing trends in the Chinese legal system in this year's spring edition of the Michigan Journal of International Law, where I was once an editor, provides one of the best discussions of the topic I have seen since a monograph called Law Without Lawyers written by Stanford University professor Victor H. Li in 1977. This is mostly because of the half dozen specific examples that it explores.

The impossibility of divorcing legal issues from the larger political and geopolitical issues in China is clear from statements like this one by Peerenboom:

The Chinese judicial system has particular problems with . . . direct threats to the regime arising from political dissidents, potentially disruptive religious-based movements such as Falungong, labor activists, and minority rights activists, including Tibetans and Xinjiang Muslims claiming self-determination. These types of cases are problematic because they challenge the legitimacy of Party rule. They are also problematic because China is relatively unstable and thus the government must proceed with caution given the high potential for, and horrific consequences of, social chaos.

It is also worth recalling that while the threat China can pose to the world is great, that it is also in many respects promising. "With the exception of civil and political rights, China generally outperforms the average state in its income class on most major human rights and well-being indicators." It also have a growing economy, and has not backed up its incessant saber rattling with major overt military action since the 1950s when it conquered Tibet and intervened in the Korean War.

The case of criminal law shows the limits of international pressures and the kind of processes that can produce change on the ground. Peerenboom notes that China undertook reforms designed to implement a more adversarial Western style process in criminal cases in 1996 in the face of international pressures, but that it didn't take because it lacked public and institutional support, because the key actors cared more about substance than process, and because it was too dramatic a change from the prior inquisitorial process. But, the failure of the criminal justice system to implement these reforms does not mean that there has been no positive change. Home grown innovations have been more successful.

In 2003, a new set of reforms introduced a process called summary adjudication akin to plea bargaining, but more like the fact based non-negotiated pleas found in the American military justice system, in cases with a punishment of less than three years in prison where the basic facts are admitted and guilt is voluntarily acknowledged. In these summary cases, the defendant's allocution in advance of the sentence, an explanation of understandable motives for the act (as opposed to justifications for it that absolve guilty) and lenient rehabilitation oriented sentences in the discretion of the judge are the norm. Often, however, the players in the system merely go through the motions with the judge, prosecutor and defense counsel effectively scripting an exchange that is close to a Western style plea bargain in substance.

Administrative detention, which is something of a mix between probation, juvenile court, pre-trial detention, and involuntary mental health commitment, has also evolved into an important part of the Chinese criminal justice system. This includes the contoversial education through labor camps which are somewhat analogous to American "boot camps" for first time offenders, although they invite comparisons to chain gangs and the Soviet gulag as well.

As Peerenboom explains:

Whereas in the past administrative detention was a way of dealing with political offenses, administrative detention today mainly deals with petty criminals. The main purpose is still to rehabilitate, retrain, and find employment for minor offenders, encourage prostitutes to look for other ways to earn a living, and treat drug addicts. Although administrative detention now also serves more punitive and deterrent ends, it is meant to be a lesser form of punishment than that of the decidedly harsh criminal law system, which historically was reserved for enemies of the state and hardcore recidivists who resisted efforts to transform them into productive members of society. Financially desperate migrants unable to find a job or to obtain payment of their salaries and youths with too much time of their hands and an increasing taste for the material offerings available as a result of economic reforms are the biggest offenders. Administrative detention is therefore an intermediate line of defense between persuasion by family, friends, and neighbors and hard time in prisons.

China is also developing a pardon or private bill like system of legislative like review of judicial decisions (not only of criminal decisions, but also civil and administrative ones) known as "individual case supervision" that provides extraordinary relief in a small minority of cases when a trial court has made an unpopular or incorrect decision that the appeales process seems inadequate to address.

As these examples show, like the older work, this year's article also opens ones mind regarding what legal systems can work that leaves one free to consider legal reforms domestically.

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