Fleshing out the Third Plenum: the Direction of China's Legal Reform

Since the Third Plenum in November of last year, a couple of interesting documents have appeared that have begun to add meat to the Plenum's bare bones recommendations for reforming China's legal system. Efforts appear to be underway to centralize court finance, end Re-education Through Labor, and bring justice into the internet age. Even with Xi Jinping's support, however, many of the problems with China's legal system run too deep to be remedied by these reforms.

Received wisdom states that Third Plenums are momentous events, the pronouncements from which signal the direction and speed of reform in China for the next five years. The reality, however, is that they are primarily convenient milestones from which to date reforms. Initial signals trickle out in the form of supporting documents, but the proof of reforms' effectiveness often emerges years later. Even the now-legendary Third Plenum of the 11th Party Congress in 1978 is largely a convenient shorthand for reforms that began with the death of Mao Zedong two years before and were not truly solidified until Deng Xiaoping's Southern Tour in 1992. Besides, there was almost no hint of these changes in the decisions that emerged from the 1978 plenum, which barely mentioned the word reform and reaffirmed Mao's soon-to-be-defunct People's Communes.

The resolutions emanating from last November's Third Plenum were predictably positive-sounding and vague. Even those related to economic reform, the apparent focus of the 18th Third Plenum, are hard to interpret. Guidelines for legal reform posed even greater difficulties, as they were sparse, leaving little material to work with. Many of the elements of the resolutions sound encouraging:

"Ensure that judicial and prosecutorial powers are exercised independently, fairly, and in accordance with the law."

"Perfect structures for the judicial protection of human rights."

"Create robust mechanisms for the exercise of judicial power. Optimize the allocation of judicial authority, create robust divisions of labor for judicial responsibilities, mutually coordinate and restrain judicial powers, strengthen and standardize legal and social supervision over judicial activities" (CCP Central Committee Resolution concerning Some Major Issues in Comprehensively Deepening Reform , Xinhua, November 15, 2013).

Yet some of these phrases contain elements with the potential to worry observers of China's legal system. For example, "social supervision over judicial activities" smacks of the phenomenon of popular opinion superseding law that was evident in the recent Tang Hui affair. In this incident, the continued efforts of a victim's mother to publicize her daughter's case eventually resulted in the sentences for a number of men being ratcheted up to the death penalty, far more than the evidence should have allowed for (Southern Weekend, August 1, 2013).

A couple of documents that have emerged since last November, however, have begun to hint that the slogans of the Third Plenum may be less empty than they first appeared. The first document contained written instructions issued by Xi Jinping to the People's Courts. The actual content of the instructions largely repeats uninteresting slogans, many of them drawn from the Third Plenum (People's Court Daily, January 30). Yet, the unusual step of China's top leader issuing instructions directly to the Courts and praising their efforts has been seen by some commentators as implying a significantly greater level of support for the courts and legal reforms than has been seen in the past (Supreme People's Court Monitor, February 18).

The second document, entitled: "Opinion Regarding Mass Work on Innovative Solutions to Prominent Petitioning Problems," was issued by the General Offices of the Communist Party Central Committee and the State Council on February 25. As is often the case with such documents, many of its recommendations were so basic as to be meaningless, worrying, or both. Point three, for example, exhorted all state officials to act according to the law. More promising sections, however, stressed enlisting the courts in and improving the mechanisms for dealing with both petitioners and the underlying problems that give rise to their grievances. It goes on to name some of the most significant socio-political and economic issues in the PRC: "land acquisition and demolition, labor and social security, education, health care, corporate restructuring, environmental protection, etc." Point nineteen of the document recommends the use of new technology in reaching out to the masses, including micro-blogs, WeChat, QQ instant messenger and the web more generally (Xinhua, February 25). This was likely the most actionable proposal, as it was followed up a few days later when the Supreme People's Court launched its new website for handling petitions, complaints, and grievances ( http://www.court.gov.cn/ssxf/index.jsp , February 28).

In order to assess whether these actions are tinkering, or progress toward the rule of law in China, it is necessary to ask:

Could reforms and policies alluded to by the Third Plenum and these subsequent documents improve the ability of people and organizations to use China's courts to appeal to central policy priorities against the interests of local governments?

To provide the best possible answer to this question, this article will focus primarily on administrative litigation in China. In the PRC, administrative litigation refers to cases in which some part of the local Chinese government is sued for violating its own laws, rules and regulations. It is, therefore, the division of China's legal system which is most directly relevant to helping Chinese citizens challenge the authoritarian zeal of their local governments. Many of the arguments made here, however, will be applicable to China's legal and political system more broadly.

Probably the most promising reform to the Chinese legal system that was proposed in this Third Plenum is embedded the sentence: "Reform judicial management systems, promote the unified management of human resources in courts and procuratorates at the provincial level and lower, explore the establishment of judicial jurisdiction systems that are suitably separated from administrative subdivisions, guarantee the uniform and correct implementation of State laws." Most experts assume that this refers to reforms that would move control over courts' budgets and personnel to a higher judicial or administrative level. This would remove, or at least lessen, the power of local level People's Congresses to appoint and dismiss judges, and local government control over courts' budgets. These reforms are potentially significant because local government control over courts' budgets and personnel is one of their prime levers of influence over a judicial system that might otherwise be able to hold them accountable. While this would represent an important step forward, there are a number of reasons to temper optimism with a great deal of caution.

Reforms that would go some way towards centralizing courts' budgets and personnel have been tossed around for years or even decades. Even many of the phrases used in the last year are the same or similar to those that have been seen before. Like the economic policies of the 11th Third Plenum, these reforms have already begun on an experimental basis and whether they continue or not will depend on how the party evaluates their effect in the years to come (Duowei News, October 10, 2013). Even if followed through to the fullest, however, the impact of this reform will not be as significant as some might hope.

Litigation in China already allows for appeal to a higher court. So for example, if someone sues a department in the county-level government, they are likely to start in a basic-level court, which the local government can pressure through their influence over the court's budget and personnel. A subsequent appeal, however, brings the case before an intermediate court. Unless the county-level department has strong allies in the prefectural government, which is unlikely, it should not be able to put any serious pressure on the intermediate courts. Interviews this author conducted with Chinese lawyers even uncovered cases where lower court judges informed lawyers that political pressure would not allow them to find in a plaintiff's favor, but recommended appeal as a way of circumventing this issue. To be sure, appeal is not a panacea. Ideally, plaintiffs should be able to get an impartial hearing in the court of first instance. Additionally, county-level courts can make it difficult to appeal by not issuing a written refusal to hear a case. Nevertheless, moves to centralize budgets and personnel would represent a positive move towards substantial real reform.

Structural reforms facilitating the independence of courts, as vital as they are, are only one piece of the puzzle. The Chinese legal system is not simply held back by local governments interfering with the implementation of central government polices. Many of the laws that allow the Chinese legal system to limit the discretion and authoritarian zeal of the Chinese state are heavily biased in favor of the state. Even completely impartial courts can only do so much when faced with a legal framework that is tilted dramatically in favor of local governments. While some of these rules and regulations are issued by local governments to help them subvert central policies they find irksome, many of the most important deficiencies are in national level laws and policies. For example, the administrative litigation law does not contain any provision to compel the government to produce evidence that might prove its wrongdoing, and without such evidence it is difficult for a court to find against the government. More broadly, the Chinese constitution is not justiciable-it cannot be used as a basis for actual litigation. Without a sweeping overhaul of China's laws, rules and regulations, China's courts will have difficulty acting as a robust check on the arbitrary exercise of power by China's local governments.

There are also broader factors of legal infrastructure and culture that make the Chinese legal system less effective than it could otherwise be. Both for lawyers and judges, there is very little specialization, especially in administrative law, a problem that exacerbates an already existing shortage of skilled, trained, experienced and educated judges and lawyers. Whether rooted in culture, institutional factors or experience, average citizens tend to be reluctant to litigate or seek legal advice. This means that even when the legal system provides a somewhat effective tool for seeking redress against the state, many people fail to take advantage of it. The statute of limitations for administrative cases, for example, is three months, which is the same as in many developed world jurisdictions. The fact that Chinese often only turn to courts and lawyers as a last resort after exhausting other avenues, however, means that most potential administrative cases in China are lost before they are begun. Changing China's legal culture and building a solid legal infrastructure that would extend to remote areas where local governments tend to be the most overbearing might take decades, even with strong central government support.

One of the other big changes announced in this Third Plenum, the abolition of Re-education Through Labor (RETL), illustrates the need for broader reforms. RETL, known in Chinese as laojiao, is a type of administrative detention that allows China's police to sentence an individual to three years (with a possible one-year extension) without a trial or judicial confirmation. It has long been possible to challenge RETL sentences in China's administrative court. Yet the courts have clearly proved an insufficient check, and public outcry over continued abuses and problems mean that the state finally felt the need to abolish the system entirely. Many other important political and socio-economic issues will similarly require a complete overhaul before the courts can properly address them. For example land expropriation, the leading issue in administrative courts, is unlikely to be satisfactorily dealt with by judges until a workable system of rural land ownership is established.

Despite its severe limitations, Chinese citizens have increasingly turned to their legal system in general, and administrative litigation in particular, as a way to solve problems. As the attached graph shows, administrative cases brought against the Chinese state have increased at a prodigious rate, more or less keeping pace with economic growth, a staggering accomplishment considering that China has experienced the most remarkable period of growth in human history. On the other hand, the number of cases handled by lawyers has not kept pace, showing the limits to the broader system and legal infrastructure. Large numbers of fresh law majors can, and have been, graduated in a short period. But giving them the training and experience necessary to take on an opponent as powerful as the Chinese state, even in its local manifestations, is a long-term process.

Rome was not built in a day-nor were the laws and courts that still serve as the basis for most legal systems around the world. The Chinese legal system is a stronger institution for defending the rights of average Chinese against the abuses of local governments than it was two decades ago. It has a long way to go, however. While promising to abolish and centralize court finance and personnel is an important step and technology may help courts better serve the Chinese public, China's top leadership probably does not have an appetite for many of the more profound reforms that would be needed to make dramatic improvements to China's legal system. Reforming the law is an ongoing process that will probably require at least a few more Third Plenums.

The author would like to acknowledge the China Copyright and Media Blog and Supreme People's Court Monitor.