Time for something new? The position of the judiciary in China

Destroy_the_old_world_Cultural_Revolution_poster‘Destroy the old world, forge a new one’, was the slogan under which during the Cultural Revolution (1966-1976) besides countless artifacts, paintings, and ancient buildings, all law books in China were destroyed. This was Mao Zedong’s way to declare all previously existing Chinese law obsolete. During this period the judiciary system was systematically demolished, courthouses were dismantled and legal scholars and lawyers persecuted, detained, and tortured. When Deng Xiaoping came into power in 1978, there were no more than 2000 lawyers on a total of over 1.3 billion inhabitants. Currently, the country has more than 150,000 lawyers, and adopted many international laws and legal provisions. However, recently more and more complaints by citizens are not handled satisfactorily, and as a result tensions in society are on the rise. Why is this?

Developments in the 1980’s and 1990’s

In the early eighties the main form of jurisdiction in China was mediation, in which members of the Communist Party functioned as mediators. In this process, reaching an agreement based on mutual consent among all parties involved, was less important than imposing the Party-doctrine. The resulting agreements were often forced upon those involved, and the procedures to come to an agreement were not formally defined. In 1982 a law was implemented, decreeing that from that moment litigation at a court of law would be the principle method of dispute resolution. Other new laws supporting this reorientation followed in the subsequent years. On top of this the legal education was totally restructured, making formal legislation the base of jurisdiction instead of Party-doctrine. The main cause of these reforms was the enormous increase of civil disputes due to the rapid economic development.

 In the name of a Harmonious Society

Since 2006, as part of the ‘Harmonious Society’-doctrine, a mix of populism, party politics, and mediation has been taking predominance over formal litigation. In order to maintain social stability enormous pressure is exerted on local judges to reach settlements by use of mediation. One of the ways this takes place is by directly linking the career opportunities of judges on reaching targets on the number of cases that is settled by mediation. Because many citizens realize that they received less restitution than they are entitled to by law, non-compliance with the outcomes of mediation increases. This, in turn, leads to increasing? citizens protests directed towards local governments, both in the streets and online, and attempts to offer petitions to the central leadership of the Communist Party in Beijing.

If only the emperor knew…

It seems as if the policies that are being dictated from the top, aimed at maintaining social stability, are actually undermining this stability. When mediation is no real alternative to regular jurisdiction, Chinese citizens will try to get their way by using different methods more and more often. One way which is open to them is offering petitions, an ancient tradition which dates back to the time China was ruled by emperors. If only the emperor knew, was an often uttered lamentation when people felt wronged by local or regional administrators in those days. The problem is that the central leadership is well aware of the many wrongdoings that take place on lower administrative levels all around the country. Their inability, or unwillingness, to do something about this is the main threat to the stability of China in the coming years.

Currently, millions of Chinese citizens are better off materially speaking than ever before. But nobody knows when economic growth is not (high) enough anymore, and the Chinese people once again feel compelled to forge a ‘new world’.

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