Chinese Court Says "No" To Government -- Applause Still Not Warranted
About a week ago, I did a post, entitled "Chinese Court Says 'No' To Government -- Applause Not Warranted," discussing a Chinese court ruling against local Chinese governmental authorities for violating procedural requirements for confiscating property. I got the title to my post from a post on the Chinese Law and Society Blog, entitled, "Court said no to the government," which concluded by calling for "applause."
Since writing my post, no fewer than three readers sent me an Asia Times article from Asia Times article, entitled, "The Long March Towards the Rule of Law." One of the readers' e-mails with this article predicted China's freedoms would surpass the United States within ten years.
Again, I say hold the China applause.
This article details a Shangchen District Court in Hangzhou's recent ruling ordering the Zhejiang police authorities to determine why the Wenzhou Public Security Bureau failed to act on a group of fish farmers' complaints regarding an industrial zone polluting their fish ponds. The article sees this ruling as significant:
While the ultimate resolution of the case is unknown, it has already made Chinese legal history in that a local court has ruled against a provincial authority. China's big problem with implementing reform - environmental and otherwise - has been that local and provincial officials have often acted in cahoots to subvert central-government edicts that they did not perceive to be in their economic interests.
If in Wenzhou the factory owners are ultimately ordered to compensate the farmers for their loss, the case will stand out as an exception to that rule. It may also signal a new era of environmental awareness among ordinary citizens.
Though this court's decision is almost certainly a good thing, it no more indicates China is marching towards the rule of law than a decision in a small town local court allowing the teaching of creationism in the schools would indicate the United States is abandoning its Constitution. Until China has an independent judiciary, any Chinese court decision against Chinese government authorities must be viewed as standing on its own. Indeed, in this case, we have no way of knowing if the court ruled based on the law or based on instructions from Beijing.
In handling business disputes, China's courts are far fairer than generally credited, but that is because their mandate in those cases is to be fair and, to a certain extent, the judges' jobs depend on this. There is no such fairness mandate in cases involving the government and judges who rule against the government risk losing their job, or worse.
So I will say it again. Unless and until China institutes a legal system calculated to generate fair rulings in all cases, I will continue to applaud the courage of the judges who rule against the government in individual cases, but I will also continue to refrain from applauding the system itself.
Comments (12)
Read through and enter the discussion by using the form at the endDuncan - January 16, 2007 2:21 AM
Part of the problem with a grassroots-led process of legal reform is that there's no consistency. If there's no consistency, there's no reliability which makes life particularly tough on the business side. The process incidentally is likely to make the regional disparity that the leadership's so interested in worse, as rich places will naturally develop more sophisticated legal systems earlier, making them more attractive to business (both local and foreign). It's particularly disappointing that the central government seems totally ambivalent on this issue, even when local courts pass judgements that are both high profile and counter to central policy - as in Chen Guangcheng's case.
the Admiral - January 16, 2007 2:28 AM
Excellent post as usual. You should give up the law business and do the blogging full-time. Maybe you could replace the staff of the China Time blog.
I think that it will be at least 25 years before you see an independent judiciary for ALL of the China legal system.
But, I believe that the first independent part of the system will be focused on Trade and/or Commercial Law versus Personal Law.
What do you think? And what is the proper way to express that in legal terms?
lawmoldova - January 16, 2007 4:08 AM
public authorites need to be kept under control, especially in the countries with little democracy, only that way we can escape those situations, and than the courts judging the public functioners
China Law Blog - January 16, 2007 8:17 AM
Duncan --
I completely agree that the problem is unreliability. You are also right to point out the regional differences. There will always be regional differences. The United States has regional differences. There are certain states known for a strong judiciary and other states not, but the differences are particularly stark in China where places like Shanghai and Beijing are light years ahead of many of the provinces.
One other thing though that always bugs me about civil law countries (like China and Korea) as opposed to common law countries (like the United States and England) is that there is inherently less reliability (I think) because a court is less likely to do today for you what it did a week ago for someone else because precedent is just not followed as it is in a common law system.
China Law Blog - January 16, 2007 8:22 AM
THE Admrial --
I think you are right on the law side, wrong on the full time blogging. Let's see, legal work, terrible hours, paying clients. Blogging, terrible hours, no pay.
I think that to an extent, that dichotomy has already happened in places like Shanghai where the chances of getting a fair trial in a business dispute are pretty good, but obviously less so in a case involving the government. The problem with the government is that there have to be all kinds of safeguards for judges in order to give them the power to rule against the government. The two safeguards used in the Unitied States are typically elections (done in many/most? states) so that "the people" not the government pick the judges and lifetime tenure, as done in the federal courts. I do not see China adopting either of these models for a long time either because to do so would be to give up too much power.
Funny thing about this post is that I wrote it in desperation after losing a completely finished post on a recent patent court case. I was so on the verge of just saying let's just celebrate Martin Luther King day and skipping any post entirely. Glad you liked it and thanks for the always appreciated kudos.
China Law Blog - January 16, 2007 8:23 AM
lawmoldova --
Thanks for checking in. You are absolutely right and seeing as how you are practicing law in Moldova, which has been going through its own major transitions (but in the meantime, always producing to still produce some of the best wine in Eastern Europe), how can/should a developing country like China do this?
Paul Denlinger - January 17, 2007 4:48 PM
Since China is under the rule of the Chinese Communist party, it is impossible to understand how the courts function without an understanding of CCP politics.
This is simply a reality in today's China. On the local level, it is affected by the local government's policy, and so on and so forth.
China Law Blog - January 19, 2007 12:23 AM
Mr. Denlinger --
I completely agree.
Joseph Wang - January 19, 2007 9:07 AM
I don't think that there is a dichotomy between the "law" and "instructions from Beijing." In the Chinese case, the law is largely written by central government officials in bodies which are dominated by the Communist Party of China. If Beijing doesn't like the way that courts are ruling they can (and should) change the law.
In the case of "ruling against the government," the Chinese government is not one monolithic entity, and there are lots of different people and entities each with their interests.
In the case of the court case that was described here, this looks like a standard variety case under the Administrative Litigation Law, which happens all of the time. The ALL was passed by the National People's Congress under the direction of the Communist Party, in large power to *increase* the authority of the central government. The central government passes the laws, local governments should follow them, if local citizens use laws passed by the central government to force local government to comply with Beijing's wishes, that is *exactly* what Beijing wants.
Joseph Wang - January 19, 2007 9:14 AM
What do we mean by an independent judiciary? If we mean a judiciary that will interpret and execute the law as written, then that is likely to happen rather quickly. It's a matter of legal training and not policy changes.
If we mean an Anglo-American style judiciary with its own power base which can make law independent of the legislature, then I doubt that this is ever going to happen. France and Germany don't have independent judiciaries in that sense. That's not how civil law judges operate.
Having an impartial judiciary, however, becomes important whenever power becomes disputed. At some point there will be some dispute within the Party over just who exactly is in charge, and at that point the courts will hopefully be in a position to serve as referee as they have done in the United States in 2000 or in Mexico last year.
China Law Blog - January 21, 2007 1:20 PM
Mr. Wang (i) --
I agree.
China Law Blog - January 21, 2007 1:22 PM
Mr. Wang (ii) --
You make a good point. Independent can mean two different things. Independent as in a separate government arm and independent as in from outside/corrupt influences. China is moving towards the second, but making little to no movement on the first.