CORN October 2015 Edition
China’s Legal Reform under the New Leadership: Observations from a Public Interest Lawyer on the Front Lines
What to make of the last three years of legal reform in China?—The anti-corruption movement, passion for judicial reform, experiments in the transparent rehearing of some controversial convictions, the creation of legal space for administrative litigation together with the detention of some lawyers, the phenomenon of judges resigning, and so on. Tong Lihua’s new book Legal Reform After the CCP’s 18th Congress, published at the end of July 2015, provides inside perspectives and practical information on how to interpret these new changes.
IS THE MOVE FROM RULE BY MAN TO RULE OF LAW?
Before the 18th Party Congress, concerns about law reform in China were widespread. And the new leadership has taken note, recognizing the need for rule of law-building. CCP Secretary-General Xi Jinping told the 18th Party Congress: “Modernization can only be achieved in countries which have well solved the tension between rule of law and rule by man … If the rule of law has been destroyed, power abuse will turn into a flood.” The 4th Plenum Decision nevertheless used circuitous language to communicate the Party’s relationship to the law, calling for “all Party organs at different levels … to respect the will of the Party and people through respecting the Constitution and laws”. Whether the law is above the Party is not clear.
As part of Secretary-General Xi’s well-publicized anti-corruption movement, there have been various measures to prevent corruption, such as official property registration. The court hearing-centered reform is intended to improve criminal justice, among other things. The openness of case-filing could create space for administrative litigations which would make government accountable through the courts. Overall, genuine efforts to keep officials’ out of judicial issues have been also made.
But that doesn’t mean reform hasn’t brought about resistance. An untold number of officials, accustomed to relatively unchecked power and little oversight, strongly resist these reforms. Legislative and central government policies are still heavily influenced by the vested interests of government agencies which often lead to biased and fragmented policy ideas. The current judiciary reform hasn’t yet found the Goldie Locks balance of competitive salary and benefits, high demand of capacity and strict liability. In short, the interaction of lawyers with the current reform is still not trust-based.
TONG LIHUA: A LAWYER ON THE INSIDE
Tong Lihua is a well-respected big name public interest lawyer in China (about whom I have written before). He now leads a pro bono network of 9,000 lawyers on children’s rights, whose affiliated organizations have provided legal service to more than 600,000 clients while helping migrant workers collect US$100 million of unpaid salary and workplace injury compensations over the past 10 years. As a front-line public interest lawyer, Mr Tong has rich first-hand information on the role of law—and lawyers—in practice. Among Chinese lawyers, Tong Lihua is one of the very few with inside political knowledge of China’s new legal reform.
First, he was present on the Chinese Communist Party (CCP) Congress for the leadership transition, where he advocated for legal reform at the Congress. Among the 2270-Party member representatives, only three were lawyers—and one of them was Tong Lihua. During the Congress, Mr Tong made a name for himself as a committed representative to advocate legal reform in China. He wrote a 10,000-word proposal titled Challenges on Rule of Law Building in China and My Suggestions on why and how to go about legal reform in China. He took political risks to submit his proposal in a non-traditional way while advocating his proposals through social media and traditional media outlets. From his experience of advocating legal reform ideas, he felt there was sufficient common ground among officials on the necessity of strengthening the role of law for the countries’ further reform.
Second, Mr Tong was also the only lawyer who was able to join the Party’s 4th Plenum which focused on the topic of rule of law-building. He developed his proposal at the 18th Congress into 27 suggestions—ten for the relationship between the CCP and legal reform, ten for judicial reform and seven for legislative reform. Mr Tong used his practical experience to argue the need to improve the quality of legislature, to strengthen law enforcement, to recognize the role of lawyers in the rule of law-building and to rethink the Party’s fixation on maintaining social stability above all else. His suggestion on increasing the percentage of legal practitioners in the People’s Congress (legislature) and Standing Committee members was adopted in the Decision of the CPC Central Committee Concerning Important Issues on Comprehensively Advancing the Rule of Law (also known as the “4th Plenum Decision”).
Third, as a deputy of Beijing People’s Congress (BPC), Mr Tong also had plenty of inside political knowledge of the People’s Congressional system. He took part in the annual meetings and is familiar with how deputies perform their duties. Among BPC deputies, he may very well have the most submissions as well as being one of the most committed defenders of disadvantaged groups’ rights. As a member serving the BPC Legal Committee of the Standing Committee, he also has the real experience of how Standing Committee works.
MR TONG ON CHINA’S LEGAL REFORMS
On the progress of China’s recent legal reforms, Mr Tong has been cautiously optimistic. While the new leadership has endeavoured to address the multitude of legal reform issues, Mr Tong has seen that even some good ideas were not enforced on ground. And on these shortcomings, Mr Tong has not been silent.
Law violations have been pervasive, including those committed by law enforcement agencies. Judicial intervention by Party leaders is still a big challenge for access to justice and judicial integrity. Justice has remained elusive because many cases are still not able to be filed in court. The old stability-above-all mindset is still popular among officials, too focused on mediation and petition through visits and letters. This way couldn’t settle cases—and instead have caused more disputes. The legal remedies for rights-defending in cases such as house demolition, land-grabbing and pollution have characteristically been blocked, causing chaos and disappointment among those seeking justice through formal channels; instead, an atmosphere of mutual distrust in which the public and government see each other as breaking promises results. What results is essentially no minimum code of conduct in the society.
Among Mr Tong’s recommendations, he has called for greater democratization within the Party. He suggests open and fair election or selection—at least at the county level, suggesting that the pool of candidates be open with the Party announcing candidate criteria to the public.
On strengthening the People’s Congressional system, he pointed out that the majority of deputies in the current Peoples’ Congress are officials who should be overseen by the People’s Congress. This makes the People’s Congress unable to exert its power granted by the Constitution. He suggests restructuring the People’s Congress by making them full-time deputies. The first step is to have full-time members of the Standing Committee of the People’s Congress. He suggests these members have professional training or practical legal experience. Building on the experience, the next step is to have full-time deputies for the People’s Congress. He also talks about how to have open and fair election as well as the selection process for deputies of the People’s Congress. All of these suggestions serve to improve the capacity of the People’s Congress.
Mr Tong has also talked about how to strengthen the institutional power of the People’s Congress. The Constitution grants the People’s Congress a large range of power. However, in the last few years, this power has remained largely unused. For example, the People’s Congress can investigate or hear certain matters. But the People’s Congress rarely if ever uses it. For example, after the Tianjin blasts on August 11th 2015, Mr. Tong used media to call the National People’s Congress to establish a special investigation committee and to engage in an independent investigation.
CHINA’S LEGAL REFORM: A LONG ROAD AHEAD
China is in the midst of a great legal transformation. Although much work is yet to be done, as Mr Tong himself recognizes, the active participation and bold suggestions from expert insiders give hope that reforms will continue to push forward. Furthermore, Mr Tong’s book aims to build on common ground among different stakeholders for a greater legal reform in the future. Hopefully, the meaning of judges and lawyers gifting the book for their supervisors and government clients will not be lost on the recipients.
Wenjuan Zhang, Associate Professor and Assistant Dean for International Collaborations of Jindal Global Law School, Executive Director of the Center for India-China Studies, focusing on research areas of the rule of law building and role of lawyers; collaborative governance, child law, and comparative studies of social justice and social development in India and China.
 For a Western scholar’s take, see Carl Minzner, “China’s Turn Against Law”, American Journal of Comparative Law 59 (2011).
 This was later developed into an umbrella organization called Zhicheng Public Interest Lawyers (ZPIL). The latter organization includes several public interest law organizations and programs on children’s rights, migrant workers’ rights, criminal justice, farmers’ rights and women’s rights. ZPIL has also developed a national public interest law network, with 32 public interest law organizations outside of Beijing,
 Su Jiaxi， Liao Qiqi, Tong Lihua: Party Representative as A Public Interest Lawyer, Nanfang People, November 10th 2012, http://www.nfpeople.com/story_view.php?id=3852.
 Pei Mei, Yang Qianfan, Rule of Law: the Best Option to Tackle the Current Difficulties, Nov. 7th 2012, Southern Metropolitan news, http://news.sina.com.cn/c/2012-11-07/095325527299.shtml.
 Without being listed as a speaker, he raised his hand for a speaking opportunity on a meeting hosted by Wang Qishan, a member of the seven-man Politburo Standing Committee, China’s highest decision making body.
 Anybody who is qualified shall be given the opportunity to have one month survey about the country he or she wants to lead. The party organ at provincial level shall establish a selection committee with at least 30 members. The committee members shall include party representatives, pubic representatives and some independent experts. Each candidate shall have a presentation before the selection committee on what they would achieve under their leadership and how they achieve these goals. Then there is vote by selection committee members.by