Tuesday, December 28, 2010
Here's the story from a Wall Street Journal op-ed by Teng Biao. It's interesting to see the constraints that are observed or ignored by the police when they set upon Teng and his companions. A plainclothes officer bursts into the room they're in and refuses to show his ID. Teng insists on seeing identification. Eventually the policeman calls some colleagues, who then arrive on the scene. One of them shows Teng his ID, even letting him look at it long enough to note the name and number.
The police specifically deny that they are constrained by any law. One of them starts beating Teng, saying, "Don't talk so much about the law with me. Do you know where we are? We are on Communist Party territory!" I would call this a legal-realist approach to Chinese law. In matters such as shuanggui ("double-designation": the Party's system of coercive detention for investigation of those suspected of corruption), we see the same attitude that a legal basis is unnecessary for the actions of the Communist Party and its agents.
They then attempt to take Teng's cell phone away from him, but he resists. Curiously (to me, anyway), they then give up, even though he is using it to broadcast messages about the situation to Twitter. (They grab it later.)
The group is then taken to the local police station where a slightly comical exchange occurs. Teng says, "You have no right to take us into a police station. You can't be ignorant of the provision of Article 9 of the Police Law!" Uh-oh. A quick-witted police officer counters, "Want to tell us what it says?" Teng is only too willing - it's the provision dealing with the grounds for taking people in for questioning (none of which are present in this case). He comments, "I've been told by police officers that they hate the very bones of the legislators who created [these rules]." Even though the police can ignore them in any given case, then, apparently having the rules in print is not the same as not having them.
Eventually Teng lets the police take his ID and find out who he is: a lecturer in law at a well-known university, and someone to whose fate the international press pays attention. This, he figures, saves him from a worse beating and a longer detention. The group is eventually released after some more abuse.
The episode raises interesting questions about the degree to which the police are constrained by law. To those under their control behind closed doors, they deny that they are. And yet it wouldn't be quite true to say they were completely unconstrained. They don't like Teng and his friends but they eventually release them. It might be a mistake, however, to view the constraints on police as specifically legal constraints. They have constraints on their actions the way all of us do; the way even top leaders in China do. They have to think about the consequences of what they do. If they keep Teng Biao under detention and it gets reported in the press, maybe they will get criticized for attracting negative publicity unnecessarily. I raise this just as an example; one can think of many other ways in which the police could be constrained other than by China's legal institutions. In short, rules in legal form are not necessarily meaningless, but the fact that they might mean something doesn't mean it's the legal system that gives them meaning.
Monday, December 27, 2010
This is not exactly earth-shaking news, but I'm writing about it because I'm convinced that one of the best ways to understand the Chinese legal system is to understand the incentive system under which its institutions and personnel operate.
The Supreme People's Court is, naturally enough, interested in the performance of lower courts, and one way it tries to measure this is by keeping track of their case closure rate. The basic idea is that the faster you close cases, the better. Traditionally, case closure rates have been measured by comparing the number of cases that come in in a given calendar year to the number that are closed (i.e., wrapped up in some way) in that year. The problem is that such a system discourages courts from taking cases near the end of the year, preferring to put them off until the next year starts. (Of course, this just means more cases in the following year, but this would hardly be the first time human beings had bought immediate gratification with the coin of deferred pain.)
The SPC is now contemplating a new measure: how many cases are closed within the statutory time limit. This seems like a much more reasonable measure. Trying to measure court performance in some way is a reasonable goal, but a system that treats cases that come in in January the same as cases that come in in December can't be a good one. And a system that treated cases wrapped up in one month as always better than cases wrapped up in six months wouldn't very good, either.
According to the news report from which I got this story, the SPC has already abolished the traditional system I've described above, but hasn't yet made a final decision on what to replace it with. I guess for the moment nobody is measuring how quickly courts are processing cases.