After looking at the effects of Weibo on the Chinese justice system yesterday, I thought it was important to take a closer look.
The Chinese Courts
Until 1949 there was very little litigation in China. If someone wronged you, you would have to appear in front of the local leader. There you, and the person you accused were usually beaten before your testimony would even be heard. The leader would then decide, based on anything from your moral character to the ugliness of your face which party deserved the punishment. That person would then be tortured until they confessed, and the common folk would marvel at the leader’s wisdom. This is paraphrased from the book “From the Soil” which I will be reviewing shortly.
Not enough has changed in the last 60 years.
Judges in China still use their own “reason” to decide whom is guilty or innocent, irrespective of the evidence or precedence. Like the now infamous story of a man from Nanjing, who on seeing an old woman fall out of a bus brought her to a nearby hospital. When the bill arrived, he gladly paid it. The old woman later sought damages in the accident and sued the man who had cared for her. After considering the case the judge concluded that the man must be guilty, after all, why would an innocent man help a stranger? (This case is often cited as a reason for inaction among the Chinese when it comes to helping those you don’t know).
Torture, sadly, is still a part of the Chinese legal system, even though it has been illegal for years. This was highlighted by a case in which a man was arrested for murder, and confessed the crime while being tortured. He spent 7 years in jail, only to be released when the man he had supposedly murdered returned to town. A law is now being revised that states not only is torture illegal, but confessions given after torture will also be inadmissible.
Equality in legal proceedings is also frequently absent. I had a co-worker tell me that she wanted to leave China for fear that someday her or her husband may have a problem with an official, and would have no hope of ever winning in a trial against them. She said it was because they had no guanxi (special connections), but it is also a systemic problem.
The gov’t also frequently holds closed-door trials for those accused of political crimes, which makes the system seem even more suspect. Ai Weiwei is still awaiting his day in court for tax evasion. The gov’t will insist on his guilt, but will likely have no proof to show the world.
Justice
Here justice is still largely based on the concept of an “eye for an eye”, which partially explains why China executes more prisoners than the rest of the world combined. Thankfully the number of crimes making a person eligible for the death penalty is slowly being reduced, but the list of capital offences still includes many non-violent crimes, most notably corruption.
Another common practice is to harshly punish an individual as a sign to the other offenders. This is often seen in corruption cases and other scandals. In the melamine powder scandal, which killed several infants, the farmers linked to this incident were executed, and some directors were forced to step down. This was seen as just, even though there must have been hundreds of people who knew that the practice was happening.
Police are also in favor of allowing the two parties to fight out personal matters instead of getting involved. While this might be ideal for small claims, that it has been seen as acceptable for manslaughter cases, seems to be beyond reason.
China now claims to be a country under the rule of law, and yet its legal system still seems to be full of loop holes and favors. Yet, progress is being made, and as more people leave their hometowns, where the judge could rule on past knowledge of their behavior, a more equal system will emerge.
Bonus
An interesting discussion about the influence of religion on the courts of imperial China can be found over at The China Beat. The following pictures are from my trip to a Daoist temple in Beijing, and show trials, torture and punishment as they would happen in the afterlife (which explains the demons and ghosts). A bit unsettling.
I have to correct one point in your article about the low level of litigation in China prior to 1949. First off, Chinese society is not a particularly litigious society anyway. The scenario you described is more in keeping with the general situation during the Ch’ing dynasty and certainly for the vast majority of rural situations anytime before (or even since) 1949. But the current orthodoxy in China makes it sound like the country had close to zilch in anything prior to 1949, which, to even the most ardent party supporter, just couldn’t possibly be true, even on a purely hypothetical level.
In fact, between 1912 and 1949, there had been a good level of litigation (especially in the urban regions), although the litigation tended to be mainly in contractual or commercial, probate and divorce matters (well, what isn’t?). Indeed, the caselaw during 1912-49 are precedents that are (and have always been) statutorised into the Taiwanese legal system. You’d be surprised at the high quality of the judgments from those times, mainly because lawyers and judges in those times were predominantly trained in the UK or the USA.
When I was in law school, I had occasion to read some of those 1912-49 litigation documents and/or judgments (which tended to follow either British or American practice), and I can attest that their general quality of presentation and reasoning far outstrips those of present-day China.
A good example is the Marriage Law [Act] of the Chinese Republic 1912 (which was modelled chiefly on Anglo-American lines with additions from German and Swiss models) that gave female parties relative more equal rights than hitherto given. There had been piecemeal but technical amendments in the 1920s and 1930s to that law. By 1949, the new government wiped the slate clean and legislated the Marriage Law 1949, which was modelled on (read: imported from) the Soviet marriage codes of 1924 and 1932 (which the Soviets themselves conceded was unworkable). Even in such purely family-law matters, the scenario described would be the one most likely faced by the litigating parties. That may have been a problem, but since commerce and other meaningful human endeavours were no more, so ‘no problem’ for the authorities.
Even today in Hong Kong, we have lots of ex-mainland immigrants who resign themselves to not fixing their marriage/divorce/custodial papers because of the potential of having to face this kind of ‘hearing’ back on the mainland – a direct result of the mainland’s various family-law statutes all springing from the Marriage Law 1949 notwithstanding various piecemeal amendments to it.
An interesting note here would be the current legal struggles in China to decide on what to do with lawsuits between mistresses and wives, which have become increasingly common. It’s hard to believe, but there are many (not a majority) actually arguing for mistress rights.
Mistresses in China (and everywhere else around the world) already have rights – they are encompassed under the laws of contract, property, family, succession, probate and so forth (even in the PRC). The question is that some of our more legally unwashed don’t seem to understand this and go off on a tangent to reassign/reclassify those existing rights into an artifice called mistresses’ rights. These probably well-meaning people have no idea about the whys and wherefores of applying those rights through those particular areas of law, and think that it’s cute to open up another ‘front’ as though those rights didn’t exist in the first place.
The point is not so much a lack of rights as it is a lack of assertion and enforcement of those rights. The problem with China is that the rights are spread out over a wide area (in the legal horizon) and the authorities have never learnt the basic principles of ‘making fresh provisions’ to unify the widely spread out rights.
For example, a woman who gives birth out of wedlock and if the putative father is known, she has custodial and financial relief rights for the illegitimate child. Her own status as a mistress or otherwise is wholly irrelevant since giving birth out of wedlock by that fact itself makes the mother a ‘mistress’ (which by the way is not a legally recognised term). Mistresses’ rights and the ilk are the kind of nonsense we get from the sociological camp whose people seem to have too much free time on their hands (not busy enough?) and come up with such artifices to justify something in their fields. (Lawyers are themselves not immune to this tap-dancing.) Such artificial delineations makes for great feel-good factors and academic theatrics, but doesn’t restore justice or offer recompense for the innocent party (the child) when a lawyer has to present a case in family court at 9 in the morning with a 5-pound bundle of papers.
As I know it in the PRC, a ‘mistress’ who had given birth to an illegitimate child has to fork out a hefty RMB9,000 (US$1,450) fine for ‘illegitimacy’ (i.e. giving birth out of wedlock) before her child is allowed to receive compulsory education. Whose rights are we then talking about, the mother’s or the child’s? Just whose rights are more important? Those are the wrong questions, in fact. The rights of the child are intertwined with the mother’s, that’s the reality. If the child has rights, then the mother basically couldn’t care less about her own. It is not hard to see the tendency of confirmation bias and selective focus bias of sociologists when you’re standing in the middle of the game as a lawyer trying to plead for assertion of personal rights of related innocent parties.
I must say, Tom, you have a talent for drawing out comments from people, and I’m jealous that you have that ability. And sorry about the longwinded comment.
thenakedlistener: you describe the Chinese legal system with great clarity and it makes for very interesting reading. I understand about the legal precedents having been statutorised into the Taiwanese legal system but what about Hong Kong today? Do you still have the British legal precedents or has the system now adopted mainland legal practice?
Thanks for the praise, which I don’t deserve, honestly. You’ve touched on something that could very well be a post unto itself. The answer is yes, we’ve kept all of our pre-1997 UK caselaw. We’ve also done one better: being able to use post-1997 UK, American, Australian, New Zealand, Singapore and any other common law jurisdiction as legally persuasive guidelines in reaching decisions. Some UK caselaw could not be adopted, such as those relating to British nationality, the pre-eminence of the Crown, etc., but no one quibbles about that. We have not adopted any mainland legal practice, although that could be a possibility come 2046, when our current system of government will be fully absorbed into the PRC. That, of course, is a tremendous grey area since there is no official thinking at all in Hong Kong or Beijing about the situation in 2046. Pundits say Hong Kong will probably get a time extension in 2046 because our system actually works to China’s favour. And, yeah, we still have all our British civil servants running the show here, even today…
I just also wanted to comment about this business called ‘rule of law’ in China. When China says it has 法治 (rule by law), it really means rule by law. The more academic pundits among us often tend to excuse this as a mistranslation or somesuch for ‘rule of law.’ They’re mistaken. Why? Hong Kong is a Chinese-speaking/writing place too, and we have 法律規則 as ‘rule OF law.’ The mainland authorities know full well the difference between 法治 (RBL) and 法律規則 (ROL) – it’s not like these Chinese terms were invented last night. These two terms have been around for centuries in China. Any law student in Hong Kong will be able to state quite explicitly the difference in thinking behind the Chinese terminology, never mind those behind the English terminology. In Hong Kong, the term 法律規則 (ROL) is enshrined in statute (section 8(1) of the Evidence Ordinance, being added since 1950 after UK added it into UK law in 1949) and somewhere in the Basic Law of Hong Kong. I believe Taiwan uses 法律規則 (ROL) too, but don’t quote me on that.
I don’t wish to be longwinded, boring and making waves, but China chose to walk down the 法治 (RBL) road, basically from the times of the Chinese legalists around 300 BC to 200 BC (the time of the Warring States a.k.a. the time of the creation of the Chinese Empire) when administrators openly avowed legalism, which is no more than a rationalisation by political administrators for their having total political control of their societies. I reckon the difference in terminology between several Chinese places (China vs. Hong Kong vs. Taiwan) is more than a little bit lost on these academically inclined sociological/sociolinguistic/sociopolitical pundits. I mean, if I were running China, would I say I prefer 法治 (RBL) over 法律規則 (ROL)? I’ll just let the pundits interpret whatever till the cows come home. Just my twopence.
Thank you again for helping fill in the holes in my knowledge. I knew that China claimed to be a country under rule of law, and thought that to be a ridiculous claim, but didn’t know the correct description.
Oh, I tell you, Tom, just go with the flow with the pundits, for personal safety if for no other reason. If you ever have to discuss the ‘correct description’ with any Chinese person, they’ll crucify you. About 99% of Chinese don’t know the difference between those two Chinese terms, and what with the weight of Chinese history and all on their side, and they’ll give you a right royal trouncing that you’re wrong. Personally, my favourite refrain to such arguers is, “Are you a lawyer? No? Then there’s nothing to discuss because I don’t know, and you neither.”
thenaked listener: But your twopence is very thought provoking! So if Hong Kong has Rule of Law, utilising UK case law and other relevant case law from USA, Australia, NZ and Singapore and mainland PRC has Rule by Law, this feels very disturbing to me. Surely this means that in Hong Kong, lawyers build a case utilising legal precedents from above countries’ case law so the law is continually being refined by the legal process itself. Whereas in mainland PRC, Rule by Law means literal adoption of possibly outmoded laws which cannot fully accommodate changes in society, but delivers predictable verdicts.. So Rule by Law is definitely preferable for a one party state but how does Hong Kong’s Rule of Law work in China’s favour?
My dear, you are touching on a legal debate still raging in Hong Kong. Yes, you are absolutely right that Hong Kong’s legal system is continually refined on a daily basis – and growing further and further apart from the PRC legal system.
And, yes, you are very observant to say the PRC politico-legal system(s) tends to adopt outmoded laws (e.g. Marriage Law 1949) and only manages to accommodate or meet social developments by the use of what the French calls ‘panic legislation.’ If Hong Kong laws have become panic legislation lately, imagine how we see PRC legislation. That’s why so many laws in the PRC are contradictory or even self-contradictory – just witness the plethora of PRC regulations on licensing entertainment businesses and the prevention of corruption. Just look at the regulatory oversight of the PRC tobacco industry for a classic example of kafkaesque irrationality.
How does HK’s ROL work in China’s favour? Simple. Any litigation of meaningful value done by a PRC party is usually connected with an overseas party. That being the case, the forum is usually in HK, since that situation usually involves the parties’ HK offices. Inside the PRC, there’s no point in litigation. If the problem between parties is small, it’s too piffling for expensive litigation. If it’s big enough, there’s too much at stake resting on a ‘predictable’ verdict that’s got cadres’ greasy hands running all over it – so the solution oftentimes is one party basically tries to lay The Ole’ Italian Job on the other by bumping him off in the middle of the night! (Yeah, I know, it’s an uncharitable, cynical view, but also an accurate one, so I’m told).
Yeah, I know, it doesn’t quite answer your question, but we in HK are still figuring out the solution ourselves. So far, HK works for China, maybe just not for as long as we would’ve liked.
thenaked listener: Thank you so much! The penny has dropped! I now appreciate the difference between ROL and RBL, Hong Kong and PRC law. So much for your twopence! I tell you, it’s great value!
Thanks everyone. Very edifying stuff. I will provide an example of “rule by law” in action. The following is an excerpt from Xu Kong’s memoir “No Regret for Speaking My Mind—My Experience as a ‘Rightist’” (徐孔《直言无悔—我的右派经历》, p. 84-85, 新华出版社). Xu Kong was a young journalist with the PLA, and during the Purge of Anti-revolutionary （肃反） in 1955-1956, one of the many political purges in 1950s, he witnessed one of his colleagues being wrongly accused and persecuted, and voiced his dissent. Thus began his our trouble. He was “investigated” and conclusion was made against him being a “rightist.” At the end of all these, he was accompanied by the Party’s branch secretary of his unit to the Organization Office (组织科，similar to Personnel Office) to see the Conclusion made of him. After signing the Conclusion, which is itself outrageous and ridiculous enough, the director of the Office produced a court verdict by the Military Court of Beijing Military Zone and asked him to sign:
“On the verdict, there were trial date, presiding judge, judges, clerk; the prosecutor is Li Ji [the aforementioned party secretary], and the defendant of course was me. In the verdict the prosecutor listed all the charges against me, and after that, it read ‘the defendant has pleaded guilty to all charges.’ The verdict was I being ‘expelled from the arm force and stripped of rank as a senior captain.’ And ‘If the defendant does not accept the verdict, he may appeal within X days.’ I looked at the date of the verdict and saw that the appeal date had long passed.
“Puzzled, I asked Li Ji, ‘What’s going on? I have never been at the trial. You are the prosecutor, were you at the trial?’ Rather matter-of-factly, Li Ji said this was just a matter of going through the legal process, the decision as how to handle my case was made by the Party Committee, but it had to go through the Military Court to strip you of military status and rank.
“Perhaps Li Ji was right: the decision of the Party must be obeyed, the Military Court carried out the legal process according to the Party’s decision, and individual like myself must accept the verdict of the Military Court unconditionally.”
I have an even better example of the operation of ‘rule BY law’ in the PRC. It is the case of PRC v. Chen Xitong 陳希同 (1995). To cut a long story short, Chen Xitong was charged and sentenced on charges of corruption and dereliction of duty during his tenure as major of Beijing in the 1980s to the mid-90s. During his term of office as mayor, there was already widespread public knowledge/notion of his corruption, racketeering and influence-peddling. From around 1989 to 1995, various politically inspired investigations were conducted by the central authorities into Chen’s affairs, including the mysterious death of Chen’s vice mayor (officially classified as suicide). During the time of the investigations, Chen was able by virtue of holding public office to come up with various administrative (counter)measures to block the investigations. Those administratives procedures that Chen put into place resulted in several other people being arrested and/or executed. From a legal standpoint, Chen’s administrative procedures were dynamite on paper and ‘all present and correct.’ By the time Chen himself (and his son) were finally caught up and arrested, they switched their game and cried foul and played up the human rights card. The final verdict? The administrative procedures and arrests/executions performed by Chen were correct, and so were the charges laid on Chen and his son the followed. That’s cold comfort about the rule BY law. In short, if you’re in public office, you can come up with any number of laws to save your own skin and your laws would be just and justified until your own luck runs out. The law(s) then become just an excuse to legitimise your activities.
Thenakedlistener, please stay “longwinded.” I can tell you 美丽 and I are not the only two who appreciate and benifit from your operatic scale of knowledge, and I am grateful that you are giving us all these–indeed, it is a gift.
Many thanks. I’m feeling a bit embarrassed as if I’m stealing Tom’s thunder on his own blogsite.
I have no problem with you helping make my blog better, and am always glad to find someone with more knowledge in an area.
Tom, I have found your topic here and thenakedlistener’s responses to be rather enlightening in several ways. Thanks. (
mrchopstik, thank you indeed. I never imagine any of my loopy ramblings could even be described as ‘enlightening.’ The bizarre thing (to me at least) is that there is still debate about RBL vs. ROL, still excusing RBL as mistranslation for ROL, and plenty of academic hot-air’ism about same – when plainly (and plaintively) any Year 1 law student in Hong Kong could provide an unambiguous answer.
While law school is the normal course for PoliSci degree holders, I could not do it myself. In particular, I was unaware of the differences between RBL and ROL and think you have provided a pretty decent elucidation for me to differentiate between the two. Greatly appreciated.
Because of being suitably inspired by mrchopstik’s comment above, I ask for Tom’s indulgence and wish to add some more longwinded words that I feel has to be said (and I’ll be fine and defer to Tom’s good judgment should he need to delete this comment):
I will put myself to the hazard and offend any academics possibly here, and say the academic mind is apt to cast doubt on matters that doubt should not (or no longer) exist. The stuff I have read (not on this blog, of course!) about RBL vs. ROL in the PRC is mostly pure, unadulterated rubbish – it just shows up how unknowledgeable and unread-up so many academics are about matters that have already been historicised, historiographed, legislated and administrated.
Even in Hong Kong here, I could generalise that most of our own non-legal academics don’t bother to consult practising lawyers on potential legal points before publishing papers. Likewise, lawyers are disinclined to be consulted by that kind of academics wearing sometimes more-than-obvious selective focus. So academic words become published peer-reviewed but with no legal clearance, thereby perpetuating many of the oddball, outlandish nonsense we take in lock, stock and barrel, thereby refuelling unwarranted doubts.
I know I am being highly biased and unfair to single out the academic for a thrashing. But it is from the academic that the most of us receive our ideas about RBL and ROL. (We mostly don’t receive those ideas directly from law: it’s just too technical and complicated for the average person to digest.) We expect the academic ‘goods’ to be of suitable and sound quality, and at least better than those produced by the mass media or some other source. But when the academic goods are in a worse state than the standard instruction given to a Year 1 law student, then something has to be seriously wrong, know what I mean?
Mine are strong words, strong accusations, and I will not apologise for them. If any Year 1 law student in a Chinese place like Hong Kong is able to explain RBL vs. ROL as a non-practising lawyer could, I’ll leave it up to commenters to judge whether my strong words are justified.
(Because of my accusatory overtones here, I’ll just say this is my penny’s worth instead of my usual twopence worth. Sorry for being longwinded again)
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