Teaching Comparative Government and Politics

Monday, August 22, 2016

Judicial restraint in China

In China, judicial restraint sometimes means restraining people subject to the court's jurisdiction. Sometimes it means taking less action than the judges could.

Suppress and support: The Communist Party cracks down on political activists, even as it eases up on some less sensitive legal cases

A HUMAN-RIGHTS lawyer and three activists have been found guilty of “subverting state power”… they are the latest part of a crackdown on Western ideas and social and political activism that began in earnest after Xi Jinping became Communist Party chief in 2012…

Yet the crackdown on rights lawyers and political activists is not the whole story. It comes as incremental judicial reforms are taking place for less sensitive cases at a local level which mean that some citizens are making modest progress seeking redress through the courts. These two contradictory dynamics—old-style, top-down political pressure alongside some bottom-up legal empowerment—are part of the party’s carrot-and-stick approach to maintaining stability…

On less sensitive cases… popular anger has pushed the judicial system to try to be more accountable. China’s most senior legal figure, Zhou Qiang, appointed president of the Supreme People’s Court in 2013, is widely believed to want to use judicial reform to stop people taking their anger onto the streets—an increasingly widespread phenomenon…

Chinese courtroom

In the past year, the number of cases accepted by courts relating to the rights of socially marginalised groups has surged, even though few have won. They include a lesbian student suing the education ministry for textbooks calling homosexuality a disorder; the country’s first transgender employment discrimination case; and dozens of food-safety and environmental-protection suits that challenged large companies…

Yet the courts are still under the thumb of the Communist Party. Officials approve the hearing of many cases and sometimes determine the verdict and sentence, too. There is no way for plaintiffs to know whether a case will cause them trouble or not…

It will take a lot more effort to educate the broader public on their legal rights and to train enough legal officials. Judges, especially those in lower courts, are poorly paid and have little formal legal training. Many have been jailed for taking bribes. This generates deep resentment, and is the reason why thousands of petitioners journey to Beijing each year to complain to the central government rather than bother using the local courts…

Experts say reforms are trying hard to reduce corruption at local levels, not least to limit the damage it does to the party’s reputation nationally. But the possibility of any kind of institutional, independent checks and balances is still a long way off…

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