Victims of the tainted milk scandal look to launch class action law suits against the dairy firms. Yang Jia, a Beijing resident who stabbed six Shanghai police officers to death because he believed they had wrongly accused him of bicycle theft and beaten him in custody, is executed. Huang Songyou, vice president of China’s Supreme People’s Court is reportedly detained by the Communist Party disciplinary committee and then removed from his post.
Sensitive legal issues have been in rich supply in China over the last month or so, but a Politburo meeting held at the end of November looked at judicial reform in terms of the needs of the masses rather than headline cases. Reform is required to ease increasing public dissatisfaction with the government, which is seen as a threat to social stability.
“The reform will be focused on resolving issues about which people feel very dissatisfied and really make the reform for the people, dependent on the people and beneficial to the people,” the South China Morning Post reported, citing state media.
Details were thin on the ground, but Jia Qinglin, a member of the Politburo Standing Committee and chairman of the Chinese People’s Political Consultative, made it clear that China would “absolutely not copy Western-style democracy and judicial system word for word.” In short, the Communist Party will remain king.
There have been many reports of sporadic unrest in response to job losses in manufacturing hubs that are feeling the brunt of the downturn in exports. Perhaps now more than ever, Beijing has to win the hearts and minds of the people as it seeks for ways to ensure the cash continues to flow into their wallets. Jerome Cohen, a law professor at New York University who has been tracking and writing about legal development in China for over 40 years, believes the country’s economic woes will see more people take to the streets.
“These lean years will provide for more public protests than the fat years did,” Cohen said during a speech at the FCC in Hong Kong last week. “The Chinese have learned that [this kind of] action may be the only way to resolve their grievances because the legal system has not developed institutions that help people resolve these grievances.”
Cohen is downbeat on the government’s promises of legal reform. He has a wish list – courts that are independent of local governments, judges that execute their own independent judgments, witnesses that appear in court for cross-examination, fewer limitations on lawyers, a reduction in the pervasive influence of guanxi, and so on – but it will be difficult to realize as long as the judiciary answers to the party.
(China Law Prof Blog looks a bit deeper at the commitments that came out of the Politburo meeting, in particular a pledge to introduce centralized funding for all courts. While this would take the local government out of the equation and hopefully lead to fairer judgments, the blogger accepts that this is far from a done deal.)
The three recent issues mentioned in the first paragraph go some way toward illustrating what Cohen sees as the major uncertainties and deficiencies in the legal system.
1) Class action lawsuits related to the tainted milk scandal
“What can courts do?” Cohen asked. “Can they accept all kinds of cases or just non-sensitive cases? Courts are open to claims from environmental pollution victims but there are many obstacles such as not letting lawyers participate, turning down cases, or just delaying them forever.” The smart money would be on the tainted milk cases never reaching court.
Even then, many Chinese judges’ first instinct is to mediate so as to avoid resorting to an enforcement of the law. “Courts should be at one with the masses; judges should not be legal professionals,” Cohen said of the prevailing attitude toward the judiciary. The selection of retired military officers – who are seen to be close to the people, familiar with rural conditions and of suitable stature that they can resolve cases through compromise – as judges is evidence of this attitude.
2) Yang Jia, executed on November 26 for the murder of six Shanghai police officers
President Hu Jintao adheres to a system governed by the three supremes (in descending order of precedence): the party, society, the law. According to Cohen, the president of the Supreme People’s Court has said similar things with regard to the death penalty: “The feeling of the masses is number one; social concerns are number two; and legal guidance number three.” Cohen believes the execution of Yang, whose trial was considered by some to be unfair (for more on this see the Global Sources round up), shows the limits of the formal judicial system. Such was the momentum for a swift and decisive verdict that the legal issues were sidelined.
3) The detainment of Huang Songyou, vice president of China’s Supreme People’s Court
In these cases you have to assume that there is some political agenda, said Cohen. “It looks like it is a serious corruption case, but why do they choose to go after him now? Is it because Xiao Yang [former president of the Supreme People’s Court and Huang’s mentor] has retired? Corruption is so widespread that if you wanted to get somebody [then you would be singling out] that person out while ignoring corruption by others still favored by the leadership.”
Huang was detained by the party disciplinary committee, not the police, so his party membership as well as his liberty is likely to be at stake. Strangely enough, it is within the party – which is keen to retain its position as the arbiter of the law – that some of the most egalitarian rules apply. “Before you take away party membership, you have to tell them what the charge is and give them a hearing, let someone counsel them (another party member), and the decision-making party unit has to give an explanation and allow an appeal,” Cohen said. “These are the ingredients of due process of law.”
