Friday, January 23, 2015
I am deeply saddened to announce that Jonathan Ocko, a good friend and a leader in the Chinese law community, passed away suddenly yesterday, apparently of a heart attack. Jonathan was a good friend and mentor not only to me, but to many others in the Chinese law community, and I'm sure outside of it as well. Jonathan was a professor of history at North Carolina State University, specializing in Chinese legal history. He also taught Chinese law courses regularly at Duke Law School. In addition to being a top-notch scholar, Jonathan was a very warm and friendly person. He will be greatly missed.
I hope to compile and post on this blog a collection of remembrances of Jonathan by those who knew him. If you'd like to contribute, please email me (dclarke at law.gwu.edu) your contribution along with a picture (if you can) and your preferred attribution (e.g., job title and institution).
Friday, January 16, 2015
It may seem incredible, but apparently the authorities believe that the rights of Chinese lawyers need to be even further restricted. Thanks to Joshua Rosenzweig for his translation of, and commentary on, an open letter signed by more than 500 Chinese lawyers in opposition to proposed changes to the Criminal Law that would criminalize such acts as “insulting, defaming, or threatening a judicial officer or participant to the litigation after being told by the court to stop” and “engaging in other acts that seriously disrupt the order of the court.”
Wednesday, January 14, 2015
While the Chinese government has never accepted the principle of separation of powers, it has (in the post-Mao era) allowed a space for a limited conception of judicial independence. In that conception, the courts as an institution should be independent of political pressures - officials outside of the court system should not pressure them, and they should not yield to such pressures. Within the court, on the other hand, it has always been part of the system that the views of individual judges who hear cases can be overridden by senior judges and the Adjudication Committee.
It seems that now even this limited conception of judicial independence (which did not actually function in practice in any case) is under attack, although the attack has yet to rise to the level of an unambiguous Party position. Here's an excellent article by Qian Gang of the China Media Project on recent developments: Who gave "judicial independence" a death sentence?
Monday, December 22, 2014
Over at the China IPR blog, Mark Cohen reports:
USTR has is looking for a "trade analyst" who, ideally, can speak Chinese and will be engaged in "IPR and innovation trade problems." The deadline for applying is January 2, 2015. Here is the link to the position: https://www.usajobs.gov/GetJob/ViewDetails/389902200
Note that this job is in the general IP area, not China in particular. Chinese language ability is desirable but not required.
Tuesday, December 9, 2014
On Saturday I posted links to position papers by both China and the US on China's South China Sea claims. Here's an analysis of the dueling papers.
Sunday, December 7, 2014
Displaying a level of control freakery that probably reminds many women of their f'irst husband, the Chinese government has banned puns. I am not making this up. Here are some reports:
- "Punning banned in China" (Language Log)
- "No laughing matter: China's media regulators ban puns" (L.A. Times)
- "Chinese Government Moves To Crack Down On Puns" (The Guardian)
- "Nowhere to Pun Amid China Crackdown" (WSJ China RealTime Report)
- "Like a pun in a China shop" (Chicago Tribune) (weird humorless headline that contains no pun and uses an old expression apparently only because it contains the word "China" in it)
The Language Log blog has posted a translation by David Moser of the relevant document from the State Administration of Press, Publication, Radio, Film, and Television, whose acronym sounds like flatulence in a Don Martin cartoon.
Saturday, December 6, 2014
China's Ministry of Foreign Affairs has issued a very legalistic position paper, thankfully short of the usual bluster, setting forth its position on the UNCLOS arbitration brought by the Philippines. Here it is, along with some accompanying documents:
- Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (English | Chinese)
- Summary of the Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the)Philippines (English | Chinese)
- Ministry of Foreign Affairs of the People's Republic of China Is Authorized to Release the Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (English only)
- Remarks by Mr. Xu Hong, Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs, on the Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (English | Chinese)
And in case anyone was wondering, here's the US government's recently released position, dated Dec. 5, 2014.
The language of the English version of the Chinese position paper is quite sophisticated; this does not read like a document that was composed in Chinese and then translated into English. It seems to represent China's way of responding to the arbitration proceeding in substance without formally doing so.
Thursday, December 4, 2014
I have received the following announcement. Note that the application deadline is December 19, 2014.
The Asia Foundation is seeking a Country Representative who is the senior-most Asia Foundation (Foundation) employee in China and leads all programs, operations, and external relations in accordance with Foundation strategies and policy guidelines. The Country Representative is responsible for managing all aspects of the Foundation’s work in China, including new program development; the design, implementation, monitoring, evaluation, and reporting of program activities; and the development of effective working relationships with the host government, donors, partner agencies, diplomatic missions, national and international institutions, and the media. This position also oversees financial and grant management, administration, and security; the direction, supervision, and evaluation of employees; and fundraising and the diversification of donor support. The Country Representative is based in Beijing, reports to a U.S. headquarters, and is supported by a Deputy Country Representative.
Daily direction and supervision of national and international employees; regular direction of consultants; occasional contact with interns and external Foundation contractors.
Frequent contact with the Senior Director of Field Representation and Operations and the Executive Vice President/ Chief Operating Officer.
Regular contact with Foundation Country Representatives and Deputy Country Representatives in Asia, the Chief Financial Officer and Financial Services staff, Vice President and Program unit staff including Theme Directors, fundraising staff from Public Sector Development Services and Resource Development units, Vice President and Washington, D.C. office staff, Chief Communications Officer and Global Communications unit staff, the Chief Human Resource Officer and Human Resources unit staff, and the Internal Audit unit. Occasional contact with the Foundation President and Board of Trustees members.
Frequent contact with senior host government officials, heads of agencies, national and international partners and grantees in China. Regular contact with senior members of bi-lateral and multi-lateral development assistance agencies; foundation, private sector and individual donors; senior personnel in key diplomatic missions; national and international NGO directors and staff; professional associations; U.S., international, and national academic institutions; corporate and business leaders; and national and international media.
POSITION RESPONSIBILITIES: Office and Operational Management: Manages and supervises office operations, including compliance with local tax, labor law, and other regulations, establishment and maintenance of legal standing agreements and program-level memoranda as necessary, and development and strengthening of operational policies and systems.
Ensures that all office staff understand and comply with all Foundation policies, including but not limited to ethics, conflict of interest, prevention of fraud, gender equality, child protection, and sexual harassment policies. Oversees and ensures safety and security of Foundation staff and facilities; raises staff safety awareness, undertakes risk assessments, and develops and implements crisis management plans in accordance with Foundation protocols.
Program Development and Management: Tracks and analyzes updated information on socio-economic, political and foreign policy dynamics and trends in China. Leads implementation of an integrated country strategy in compliance with the Foundation’s thematic, program, operational and financial strategies and priorities. Develops and ensures timely submission of annual plans and reports; responsible for achievement of objectives; leads program design, implementation, monitoring, evaluation and reporting. Assures the quality, impact/ scale and cost-effectiveness of the country program through a combination of grants, technical assistance, and direct Foundation implemented activities. Develops and implements pro-active fundraising strategies to diversify funding sources and achieve program and management objectives; prepares proposals in accordance with Foundation and donor protocols and guidelines. Mobilizes in-country, regional and international technical expertise and resources from Foundation staff and external consultants as required for program development, implementation and evaluation. Develops and submits timely reports as required; maintains, updates and ensures the availability of accurate program information, documentation and publications as necessary.
Financial Management and Administration: Develops project budgets, the fiscal year country budget and spending projections; ensures that budgets and spending projections are kept up-to-date and relevant; ensures expenditures are within approved budgets and that spending targets are met. Ensures compliance with all financial and accounting procedures, and grant and contract requirements; prepares and submits timely financial reports to the Foundation and donors as required.
Promotes financial accountability and transparency. Establishes administrative, grant management and financial policies and practices within established Foundation requirements; ensures proper systems are in place for the controls of all assets, funds, equipment, property, and facilities.
Supervision and Staff Development: Oversees the recruitment, orientation, training, supervision and promotion of international and national staff, consultants and interns. Establishes and maintains transparent personnel management, benefits and compensation policies and practices in accordance with Foundation policies and local labor laws. Oversees staff performance evaluation and planning systems and process; identifies opportunities for the professional development of national and international staff. Designs and implements an effective staff hierarchy and organizational structure consistent with Foundation policies and commensurate with scale and scope of program and operational requirements.
Representation: Establishes and maintains effective, professional and senior-level relationships with the host government, national institutions, program partners, development assistance agencies, donors, diplomatic missions, national and international NGOs, professional associations, academic and national institutions.
Establishes and maintains constructive public relations in China; ensures professional standard of Foundation facilities; assures positive profile through media coverage of programs and events.
Participates in meetings and events to enhance public awareness of the Foundation and to expand the Foundation's professional network and access to relevant information. Prepares articles, written materials and documentation for publication; contributes to scholarly or development community knowledge about China, development programs, issues and/or trends. Participates in Foundation meetings and other relevant professional forums and events.
Other: Participates in Foundation-led initiatives, task-forces, committees and strategic planning processes. Provides support as warranted to other Foundation offices in program development, proposal writing, representation or other activities. Undertakes other duties as assigned.
REQUIREMENTS: Experience and Skills: Minimum of seven years of professional experience managing international development programs or organizations in Asia. Minimum of three years of professional experience in China. Experience dealing with complex and sensitive political environments. Successful track record of fundraising from the U.S. government and at least one additional donor. This should include experience in proposal writing or managing proposal teams, and building and maintaining relationships with donors. Significant experience supervising multi-disciplinary teams with strong staff management and teambuilding skills. Excellent financial management skills including effective budget and grants oversight. Strong representational and diplomacy skills; analytical and problem solving skills; verbal and written communication skills; and interpersonal and intercultural skills. Preferred: Language proficiency in Mandarin; Familiarity with Asia Foundation programs.
Education and Technical Expertise: Master’s degree or doctorate degree in a relevant field, such as political science, law, public policy, international development, economics, foreign affairs or Asian Studies. Substantive knowledge of the Foundation’s key programming areas in China, including U.S.-China relations, legal reform, charity sector development, environmental protection, disaster management, and engagement with China on development cooperation.
TO APPLY: The Asia Foundation offers excellent benefits and salary commensurate with experience. To apply please submit your application directly by visiting our website atwww.asiafoundation.org/about/employment/ and selecting "Regular Employment." The Asia Foundation is an equal opportunity employer.
EOE/M/F/D/V. No phone calls, please. Application Deadline: December 19, 2014. Please place your cover letter and resume in one document and submit it as an attachment. We will only consider applicants who apply online and provide a cover letter along with their resume.
Friday, November 7, 2014
The Chinese government often complains the criticisms of its human rights record are hypocritical. After all, aren't there a lot of problems in Western countries, too? (Typically, the U.S. is always singled out as the representative of "the West"; probably it's just a target-rich environment, as they say.) This complaint is flawed for two reasons, the second of which I'll address here.
The first reason is of course that the critics aren't all governmental, and may well denounce the same abuses that the Chinese government denounces. I recall being at a conference many years ago at which an ACLU representative asked the Chinese government representative whether China would consent to prison visits by organizations such as the ACLU. The Chinese representative indignantly refused, asking (in her own mind, rhetorically) whether the ACLU would favor prison visits to US prisons by Chinese government representatives. Needless to say, the ACLU wouldn't object to that kind of thing at all.
The second reason that the complaint about hypocrisy is flawed is that even if the critic is being hypocritical, so what? This does not wash away the rights violation or make the victim feel any better. If you care about human rights, the question should always be "Does the criticism make the situation better?", not "Is the critic a hypocrite?"
Exhibit A in this argument is the text accompanying an exhibit at the National Civil Rights Museum in Memphis.
It explains how the Kennedy administration's actions to advance civil rights were stimulated at least in part by Soviet propaganda that made the US look bad. Were the Soviets hypocrites who didn't actually care about human rights? Judging by their own record, the answer is obviously yes. Would the world, and the civil rights movement in the US, have been better off if they had kept their mouths shut about racist abuses in the US? Obviously (to me, anyway), no. When you're criticized for doing bad stuff, you have two options: deny the criticism, attack the critic, and hide the bad stuff, or just stop doing the bad stuff.
Wednesday, October 29, 2014
The Fourth Plenum’s Decision is now available on the Law Genius site in annotatable form in both English (translation courtesy of Rogier Creemers and Jeremy Daum) and Chinese. I’ve already added annotations to the English text.
By way of explanation, genius.com is a site that crowd-sources knowledge by allowing texts of various kinds to be annotated. (It started as a site for annotating rap lyrics – go figure.) It has various sub-sites: Law Genius, Rap Genius, Poetry Genius, etc. – you get the idea. (Full disclosure: I know about it because my daughter runs the Law Genius site.)
I encourage anyone who might like to annotate the Decision to check out the site and add your wisdom. The annotating function is pretty intuitive: just highlight the text you want to annotate and then move your cursor over into the blank space on the right. An annotation box will appear. For tips on how to format your annotations (add italics, links, etc.), see this page.
The text of the decision passed by the Fourth Plenum on Oct. 23rd, entitled “Decision on Several Important Issues Regarding the All-Around Promotion of Ruling the State According to Law,” has finally been released [Chinese | English]. As expected, it offers more detail than did the Communiqué released earlier, but I don’t see anything here that would require a fundamental revision of the preliminary assessments that observers (including me) made after reading the Communiqué. Even though those assessments were varied, my sense is that whatever you thought the Communiqué indicated, your opinion will be reinforced, or at least not overturned, by your reading of the Decision.
The big-picture summary is that the Decision contemplates no fundamental reform in the relationship between the legal system and the Party. It is clear that institutionally speaking, the Party will remain above the law. At the same time, the Decision does contemplate some genuinely meaningful (and in my opinion positive) reforms. It also has a lot of stuff that might look meaningful but isn’t. I’ll explain below. Please note that I wrote this under a lot of time pressure, so it is not as well organized as it might be. Conclusions are tentative.
1. Party first, law second
My impression (which I have not taken the time to verify) is that whenever the Party and the law appear in the same sentence, the Party comes first. Certainly it comes first in some important places.
(a) Section 1 of the Decision lists several important principles that must be upheld in order to achieve the goal of ruling the state according to law. The first: leadership of the Party.
(b) Section 6 states that judges should be loyal to four things: the Party, the state, the people, and the law. Notice which comes last. Grammatically speaking, of course, there is no reason why this sentence could not be interpreted as giving all elements equal value; in any list, something has to come first. But we know that in a document like this, nothing – not even a comma – is accidental. The elements of this list come in the order they do for a reason.
(c ) The “Three Supremes” (三个至上) long associated with former Supreme People’s Court president Wang Shengjun (a man on whose CV not a single day of legal education appears), are resurrected in the same section. Legal system personnel should give highest priority to the cause of the Party, the interests of the people, and the constitution and laws – again, listed in that order. Lawyers must support the Party’s leadership and party cells in law firms should step up their activities.
In addition, obedience of officials to law is presented throughout as a kind of internal Party policy goal: this is something that Party members should do, and officials will even be scored on it (Section 7, Subsection 3). Those who have a “special privilege” mentality will be criticized and educated, and if necessary removed from office. But because the Decision contemplates no changes in the relationship between the legal system and the Party, the system in which powerful officials can override law if they wish to remains comfortably in place. The Decision just wants them to wish to override it less often.
2. Meaningful reforms: major
(a) The Decision calls for some significant reforms in the system for managing judges.
(i) First, it says that judicial tenure should be protected; judges should be removed from their posts only for legal reasons and in accordance with legal procedures. It’s hard to know exactly what this means; at present, as a formal matter, local people’s congresses have the right to appoint senior judges in a court, and there’s nothing in the law to suggest they can’t replace them as they please. In any case, no more detail is provided, so we’ll put this aside for now.
(ii) A very important reform in my view is the proposal (Section 6, Subsection 1) to establish essentially a career civil-service model for the judiciary. Junior judges should be selected by provincial-level courts and should start their careers in basic-level courts. They will then be promoted to higher-level courts based on their ability. The Decision does not actually specify who will do the promoting, although it would make sense for this power to be in the hands of the provincial-level courts as well. The same principle applies to procurators. This reform is significant precisely because such a model does not exist now. Courts are still making their way out of the work-unit (单位 danwei) model. The main (or at least, an important) way to become a senior judge at a high-level court is to start out as a junior judge at a high-level court – presumably by graduating with excellent grades from a famous law school. There is not now a good system for identifying promising judges at lower levels and promoting them to different courts at higher levels.
(b) The Decision also calls for some significant reforms in the court system, both apparently designed to address the problem of local protectionism. Because courts at a given administrative level are in practice answerable to local political authority at that level (which has power over appointments and finances), they tend to protect any party that local political authority wants to protect – for example, prominent local businesses. The Chinese legal community has long viewed this as a problem and proposed various ways of addressing it.
(i) The Supreme People’s Court is to establish “circuit tribunals” (巡回法庭 xunhui fating) each with jurisdiction over several provinces, to try cases involving more than one province. Note that this proposal does not involve setting up another layer of courts. The institutions in question are tribunals, meaning they are simply branches of the SPC. A decision of such a tribunal would be a decision of the SPC. A model for this currently exists in basic-level people’s courts, which can establish “people’s tribunals” (人民法庭 renmin fating) that exist in, or travel to, areas physically distant from the court’s location. The decisions of such tribunals are decisions of the court itself.
(ii) There is another, different proposal to establish another layer of courts that will cross jurisdictional boundaries, again to try cases that are in some sense cross-jurisdictional. Such a proposal would require legislative and possibly constitutional amendments. The Decision gives it only a sentence, so we know basically nothing about how this proposal might be carried out.
Note that in both cases, the institutions involved (whether tribunal or court) are intended to hear only a particular kind of case: cross-jurisdictional cases. They do not appear intended to solve in a general way the problem caused by the dependence of courts on political power at the same administrative level.
3. Meaningful reforms: minor
(a) The Decision calls for breaking the link between amounts received by a government agency in fines and confiscations and that agency’s (or, presumably, its officials’) interests. The reasons for (and merit of) this are obvious. In fact, it’s a reform that has already been carried out, at least to some degree, in a number of sectors. (I just wish the U.S. government would adopt the same principle in its civil forfeiture laws.)
(b) The Decision calls for control over personnel and finances of state auditing organs to be centralized up to the provincial level. This is presumably to provide auditing bodies with more independence from local officials, who might pressure them to look the other way during their investigations.
(c) The Decision calls for reforms in the case docketing (立案 li'an) system. Any court system needs a gate-keeping procedure to weed out non-meritorious suits before they get very far. The problem with China’s current system is that in practice, courts can avoid hearing troublesome cases (for example, cases where no matter what they do they’ll be criticized) by simply refusing to docket them (i.e., refusing to accept the case filing). While such a refusal can be appealed, courts can get around this by simply refusing to refuse; they don’t issue a decision rejecting the filing, but instead just do nothing. The Decision calls for reforming this by (it seems) removing the discretion of courts to refuse cases. Instead of a system where courts can review filings for docketability (and thus have the power to reject the filings), we will get a system of “case registration” (立案登记制 li’an dengji zhi). But if so, the system will still have to come up with some way of filtering out frivolous and otherwise utterly no-hope cases without having to do a proper hearing on the merits.
(d) The Decision has some welcome language on civil rights. It specifies the principle of the presumption of innocence (疑罪从无 yi zui cong wu: literally, something like “when there is doubt about the crime, err on the side of finding no crime”). It also endorses the principle of exclusion of unlawfully gathered evidence. I put both these items in the “meaningful but minor” category because I don’t want to say they’re meaningless, but at the same time we have heard this before and problems persist.
(e) The Decision endorses an Anglo-American type jury! At present, China has a system of so-called “people’s assessors” (人民陪审员 renmin peishenyuan): lay people who in certain cases sit alongside judges and have (in theory, although of course not in practice) exactly equivalent decision-making power over the case. It’s just a vote at the end. Thus, it’s not appropriate to call them a jury, even if they functioned exactly as they are supposed to in theory, instead of (as seems to be the case in practice) as decorative extras. But the Decision calls for the gradual implementation of a system whereby assessors will decide only issues of fact (did A actually call B a stinker?), not issues of law (assuming A called B a stinker, is B entitled to damages for hurt feelings?). This is exactly how the Anglo-American jury is supposed to function.
I group this with the minor reforms because although it would be major if actually implemented, I’m not confident that it will get very far. I should also say that it’s not unambiguously positive. Just because it resembles the Anglo-American jury doesn’t automatically mean it’s a great thing. I’m undecided on this one.
3. Meaningless feel-good language
The Decision gives a shout-out to innumerable Good Things, from constraining state power to increasing legal aid. Typically, it calls for strengthening or increasing something that is already there. Consider how often the following verbs appear:
No. of occurrences
jianquan (健全 strengthen)
wanshan (完善 perfect)
tigao (提高 raise or increase)
It would be otiose to go through them all. I would instead propose that the burden be on those who assert in any particular case that this language means something to point to the specific institutional reform that accompanies it. If there is none, then we can only wait and see. Talk is cheap. Something may come of the promise and something may not. Here are a few examples.
(a) The Decision calls for strengthening the system of constitutional review of legislation. There is such a system in place now, but it appears to be utterly non-functional. The Decision does not propose a fundamentally different way of ensuring that legislation and government actions conform to the constitution. It essentially calls for maintaining the current system of (potential) top-down review, but doing it better.
(b) The Decision makes a bow to the concept of limited government in several places, but typically only in general terms. The institutional changes that would actually accomplish this do not appear. An important principle is declared in Section 3, Subsection 1: administrative organs cannot act without specific legislatively delegated authority. This seems pretty good, and in general might be laudable, except that it is profoundly unrealistic. Emergencies happen. It might be better to establish the principle that administrative organs must act within certain bounds or according to certain principles (set forth, for example, in the constitution or a statute). Here as elsewhere, we see the idea that while the actions of state officials need to be controlled, that control should be internal to the system and not achieved through external constraints.
(c) The Decision denounces attempts by leading officials to interfere with court cases, and calls for the establishment of a system for keeping track of such attempts. But the same system of incentives that now makes judges responsive to such attempts is going to make them reluctant to record and report on them. Moreover, the same Decision elsewhere (Section 7, Subsection 1) stresses the importance of the Legal-Political Committee, a Party body that exists at various administrative levels, and calls for the Party organization in political-legal bodies (which includes courts) to report important matters to the local Party committee. Given what we know about how China operates now, I think it’s fair to ask for very, very strong evidence before believing that powerful officials will no longer be able to interfere in cases that interest them. Does anyone really believe that Bo Xilai’s case was decided solely by the judges who presided at the trial, or that Zhou Yongkang’s case will not be decided by the Standing Committee of the Politburo?
4. Dogs that didn’t bark
Curiously unmentioned in both the Communiqué and the Decision is an important reform mooted at last year’s Third Plenum: the centralization up to the provincial level of court finances and personnel appointments. This reform, designed to counter local protectionism, is apparently already being tried out on a pilot basis in Shanghai and perhaps other places. It’s odd not to see it mentioned here. [UPDATE, Oct. 29, 5:30 pm EDT: This reform is popular among legal academics but controversial among judges. There are at least two reasons for this. First, judges fear that a more hierarchical system of authority in general will increase the power of court leaders over them. Second, judges in prosperous areas fear that putting court finances under a higher adminstrative authority (i.e., the province) will mean a unified salary scale for all judges under that authority. Judges in poor areas might get more, but judges in rich areas will get less. Or so they fear. In any case, the absence of language about this may well be evidence that this reform has stalled.]
A welcome (to me) absence in the Decision is language downplaying legal professionalism and touting closeness to the masses, praising the Ma Xiwu adjudication style, etc. We have seen a lot of this language in recent years (for a thorough analysis, see Carl Minzner’s “China’s Turn Against Law” and Ben Liebman's "A Return to Populist Legality? Historical Legacies and Legal Reform"), so it’s a bit surprising not to see it here. There is a moderately troubling line endorsing the move of “qualified” military officials into the ranks of legal system personnel; it doesn’t exactly support the much-criticized practice of retired military officers simply donning judicial robes, but the drafters of the Decision cannot have been unaware of this background.
[UPDATE, Oct. 29, 3 p.m. EDT: It occurs to me that this fits well into a professionalization model, but not very well into the story of deprofessionalization, populism, and China-turns-against-law that we see in the work of Carl Minzner and Ben Liebman (a story that I generally agree with). In addition, it suggests a greater role for court decisions as sources of legal authority and not just one-off judgments as between two disputing parties. If a court decision is just a one-off judgment unrelated to anything else the legal system does, then it doesn't much matter if untrained lay people decide legal questions as well as factual ones. But if a court decision constitutes legal authority to any degree, then you want to control who's making that decision and how they make it. This reform, if carried out, makes it more possible for court decisions to have precedential value.]
5. Objectionable items
While I am disappointed (but not surprised) at the continued invocation of the need for the Party to control everything, many and perhaps most of the specific reforms endorsed in the Decision are positive. But not all. Take the problem of judges being too responsive to media pressure. This is a real problem: sometimes the media will take a particular view of a case, and the actual facts get completely lost in the dominant narrative. But why do judges feel pressure to satisfy the media? The media does not pay their salaries; the public doesn’t even know their names. The reason is institutional: they are getting phone calls from their political superiors, who are getting phone calls from their political superiors, and everyone is barking, “What the hell is going on down there in your jurisdiction? Make this fuss go away!” Chinese officials lose favor in the eyes of their superiors when there’s a commotion in their jurisdiction; the superiors don’t care about the merits. But instead of addressing this problem, the Decision takes the easy way out: let’s control media reporting (Section 4, Subsection 6).
This policy has to be seen in the context of recent rules severely restricting the ability of lawyers to comment on cases they are handling; it’s part and parcel of a general crackdown on information regarding court cases. Since getting your case into court was one of the few ways remaining for marginalized people to have a legitimate way of getting press coverage (the press can’t report on a demonstration, for example, but can report on a court case), the policy represents a further closing, not an opening.
Sunday, October 26, 2014
The International Society for Chinese Law & History has a feature on its (terrific) website called the Chinese Legal Documents Series. Here's what it's all about:
This special series invites researchers to introduce a document from their own collections, provide a translation, and discuss what these texts might be used to study. Our goal is to showcase the research of members, offer a small corpus of legal texts for the training of students, and give readers a wide view of what the study of Chinese legal history looks like.
An introduction to the series, as well as the first post in it, are here.
Thursday, October 23, 2014
You can’t call something a disappointment if your hopes weren’t high to begin with. And that sums up the official communiqué of the just-completed Fourth Plenum of the Chinese Communist Party’s Central Committee, a meeting dedicated to discussing the legal system and its place in China’s political order.
The official term for the plenum’s topic was “yi fa zhi guo”, variously translatable as “governing according to law,” “rule of law,” and “rule by law.” Few observers expected radical proposals – for example, institutional changes that would make the Party itself more accountable to legal norms – and the communiqué confirms these low expectations. For the most part, the communiqué is long on platitudes and short on specifics. (To be fair, that’s common in documents like this; specifics may be in the Fourth Plenum’s official resolution, which has not yet been released.)
Still, the communiqué does contain meaningful reform proposals that are specific enough to constitute an agenda. For example, it endorses the idea of courts whose jurisdiction will span current administrative boundaries as a way of reducing local protectionism; at present, judges at a given administrative level owe their positions and salary to political power at the same level, and thus are inclined to follow orders where local interests are concerned. Puzzlingly, it fails to mention another reform with the same object that was proposed at last November’s Third Plenum: putting all courts below the Supreme People’s Court under the control of provincial (and not lower) authorities. This reform does not challenge the principle of Party supremacy and is just a way of making authoritarianism work better. It is a bad sign for the leadership’s program if even this has run into obstacles.
The communiqué also endorses the idea of giving public prosecutors jurisdiction to bring public interest suits outside the criminal sphere – for example, suits against polluters. This liberalization must be understood, however, against a background of policy that severely disfavors – sometimes with intimidation and jail sentences – private parties who attempt to implement social policy goals through litigation. In the view of the Chinese state, determining and implementing social policy is the government’s business, not the citizens’.
One intriguing proposal is to “make the trial the center” of litigation. In other words, matters litigated should be decided at the trial itself, not before the trial in opaque, out-of-court processes. At least in criminal trials, this would be a major change from the current practice, where a case typically does not get to the trial stage unless the authorities, including the court, are satisfied as to the defendant’s guilt. (The current conviction rate is over 99%.) A process of guilt determination is not necessarily unfair, of course, simply because it happens before a proceeding labeled “trial,” but make no mistake about it: the trial is at present more the effect than the cause of that determination.
Finally, the communiqué endorses the strengthening of a constitutional review and interpretation mechanism. As a practical matter no such mechanism currently functions; the constitution is, legally speaking, almost a dead letter. But the communiqué uses verbs such as “strengthen” (jianquan) and “perfect” (wanshan), implying that such a mechanism is already in place, and just needs to work better. It is hard to avoid the conclusion, then, that major changes to the role of the constitution in the legal and political system aren’t in the cards.
This is about as earth-shaking as the communiqué gets. There are other proposals – reduce the incidence of powerful officials interfering in cases, increase transparency, reduce corruption in courts – but they are mom-and-apple-pie goals that are neither specific nor new.
Lest anyone get the wrong idea from even its modest reform proposals, the communiqué takes care to stress, at length and in several places, that the leadership of the Party over all aspects of the legal system is to continue as an absolutely unquestionable and unshakeable principle. Indeed, the communiqué calls for strengthening Party leadership in a number of areas, although this is likely just rote and meaningless language; it is hard to see how Party leadership over the legal system could be further strengthened beyond what it already is. And in language reminiscent of the famous “Three Supremes” which judges a few years ago were asked to observe – the supremacy of the Party’s mission, the people’s interests, and the law – the communiqué declares the policy goal of developing a corps of judges who will be loyal to the Party, the state, the people, and the law. Nothing is accidental in the language of a Party communiqué, and the word order here is no exception. As always, the Party comes first.
Friday, October 3, 2014
Budget Law revisions tighten, not loosen, central government's control over local government bond issues
Recent amendments to the Budget Law have been reported as liberalizing the regime for local government bond issuance, but it doesn’t look that way to me.
For a long time, local governments in China have generally not been allowed to issue bonds. In order to finance projects such as infrastructure construction, therefore, they have turned to what are called local government financing vehicles (LGFVs): companies established and wholly owned by local governments that raise money through bank loans and bond issues. These LGFVs have some serious debt problems, as has been noted in many places, and those debt problems are generally viewed as local government debt even though local governments are typically not on the hook as a legal matter.
Many have proposed that local governments should be allowed to issue bonds directly, and that letting them do so would somehow alleviate the problems of LGFV debt. It has never been clear to me exactly why this should be so—infrastructure projects that don’t pay off when financed through LGFVs are not going to be more profitable when financed through direct local government bond issues—but that’s tangential to the purpose of this post, which is to discuss recent relevant amendments to the Budget Law regarding local government bonds.
The 1994 Budget Law (Art. 28) stated clearly that local governments could not issue bonds unless there was a statute or State Council rule stating otherwise. No statute ever gave this permission. Only in 2011 did the State Council first provide the explicit permission required by law for four local governments (Shanghai, Zhejiang, Guangdong, and Shenzhen) to issue bonds directly, and in 2013 the provincial governments of Shandong and Jiangsu were granted permission to issue bonds.
The Budget Law was revised on Aug. 31, 2014, with the revisions to be effective on Jan. 1, 2015. The revisions relating to local government bonds (now in Article 35) have been reported as liberalizing the rules. For example, a Bloomberg report is headlined, “China to allow local governments to sell bonds directly.” The rating agency Fitch welcomed the amendments as “formalising long-running proposals to enable local governments to issue debt directly for the first time.”
But how much have things really changed?
Under the previous Budget Law, local governments at any level could not issue bonds unless explicitly authorized by statute or by the State Council. Under the revised Budget Law, that condition is still in place. Bonds may be issued only by local governments authorized by the State Council. In fact, the revisions tighten the conditions in two ways: first, only local governments at the provincial level may issue bonds. Second, bond issues may be used only to finance public utility projects and not to finance commercial projects; neither limitation was in the original Budget Law.
In short, the revisions don’t allow local governments to do something they could not do before. State Council permission is still required, and in fact the terms upon which the State Council may grant permission have been tightened, not loosened.
UPDATE, Oct. 4, 2014: It occurs to me that I should add a clarification here: tightened standards don't necessarily mean few or no local government bond issues. Very possibly the revisions and the publicity around them are a sign that the State Council intends to change its cautious approach and grant permission liberally. But it's still up to the State Council's discretion, as before, and indeed the State Council has lost the discretion it had before the revisions to allow cities (such as Shenzhen) to issue bonds.
Monday, September 29, 2014
Tuesday, September 23, 2014
I suppose I shouldn't be shocked any more by this kind of thing, but I think I was not alone even among cynics in being taken aback by the harshness of the life sentence imposed on Ilham Tohti, a professor in Beijing of Uighur ethnicity, on charges of separatism. In an orgy of vindictiveness, the authorities, in addition to the gross mistreatment in detention and the sentence itself, extended punishment to his family by confiscating all his (and his wife's, under China's laws of marital property) assets, thus reducing them to penury.
Even if you think separatism is a heinous crime, the charges in this case were utterly bogus: Ilham ("Tohti" is his father's name, not a surname) is well known as someone who does not support independence for Xinjiang. I have met him and talked about these very issues. He does support more genuine autonomy for Xinjiang and for less repressive policies toward Uighurs. He has criticized the government. (These points are all true of a number of Han Chinese, too, but they have not been thrown into jail.) Apparently that was enough.
As many people have pointed out, jailing and intimidating Ilham and moderates like him is just about exactly the most counter-productive path on could imagine for the Chinese government to follow. They don't want moderate Uighurs; do they prefer radicals?
Sunday, September 21, 2014
If you're following Hong Kong politics, you'll know that the pan-democrats in Hong Kong are upset about the Chinese central government's idea of how to interpret its promise of "universal suffrage" in the next election for Chief Executive: everyone will get to vote, all right, but the choice of candidates will be limited to two or three approved by a Beijing-controlled nominating committee. Just by coincidence I ran across a 3rd Circuit case today in which the court discussed this kind of democracy in the context of elections to a corporate board of directors:
We rest our holding as well on the common sense notion that the unadorned right to cast a ballot in a contest for office, a vehicle for participatory decisionmaking and the exercise of choice, is meaningless without the right to participate in selecting the contestants. As the nominating process circumscribes the range of the choice to be made, it is a fundamental and outcome-determinative step in the election of officeholders. To allow for voting while maintaining a closed candidate selection process thus renders the former an empty exercise. This is as true in the corporate suffrage contest as it is in civic elections, where federal law recognizes that access to the candidate selection process is a component of constitutionally-mandated voting rights.
Note how the court (along with everyone else in the world other than the Chinese government) viewed the principle as obvious in the political context; it was just clarifying that the same principle applied in the corporate context as well.
Tuesday, September 9, 2014
US Chamber of Commerce releases report on (actually, indictment of) Chinese competition law enforcement
I just finished reading the U.S. Chamber of Commerce’s indictment of Chinese antitrust enforcement that was made public yesterday. [Text | NY Times story] It’s very well done – quite detailed and terrifically sourced. My congratulations to the anonymous authors for great research.
The main complaint is twofold: First, that what I have called “enforcement” isn’t really enforcement of law as such; it’s more in the nature of case-by-case extortion having very little to do with whether laws were actually violated. After all, if that were the concern, why is the National Development and Reform Commission (which seems to be the main culprit here) warning targets that they had better just do what they’re told and not call in their lawyers? Second, that “enforcement” is biased against foreigners. The report points out that in MOFCOM’s review of mergers, only 7.6% of the transactions reviewed were domestic-to-domestic; a huge number of domestic transactions that should have been reported were not, and MOFCOM was not doing anything to punish the companies that didn’t report. Moreover, all the cases in which MOFCOM had blocked a transaction or imposed conditions on its proceeding involved at least one foreign company. (Hats off to my friends Lester Ross and Kenneth Zhou of WilmerHale’s Beijing office, whose research is responsible for this information.)
The report makes a good case in showing that something more than just inexperience by the regulators or whining by sore-loser foreign companies is going on here. It does that by showing that China is an outlier in three ways. First, many of its practices are unique and not reflected in international practice. Second, the practices that the report complains about are not observed in other countries that also have new antitrust regimes administered by inexperienced officials. Third, China’s regulators have not joined the International Competition Network, the international club of antimonopoly regulators, even though it has joined similar bodies in the areas of banking, insurance, and securities.
I have to say that in a few places the report seems to be reaching a bit in its arguments. For example, the presence in Article 1 of the Antimonopoly Law of language talking about the “healthy development of the socialist market economy” is taken as sinister evidence of the improper integration of industrial policy into competition policy. This kind of language is compatible with just about any economic policy or lack of policy and to my mind is basically just meaningless fluff.
Second, the report suggests that China’s antitrust policy (as actually implemented) violates its WTO obligations. With the caveat that I’m not really a WTO expert, I think this argument is extremely weak. The report simply gets its facts wrong when it says (p. 6) that China made a WTO commitment via the section of the Working Party Report that says, “The representative of China noted that the Government of China encouraged fair competition and was against unfair competition of all kinds.” Not only is that language way too weak and general to support a concrete commitment—it’s not even phrased as a commitment—but it appears in Para. 65 of the Working Party Report, which is not one of the paragraphs incorporated by reference as a commitment in the final Protocol of Accession. It’s the Protocol of Accession as well as all the WTO agreements, and not the Working Party Report, that tells you what China’s commitments are.
The report also notes (in a footnote) the existence of Para. 203 of the Working Party Report, which was incorporated by reference into the Protocol of Accession. That paragraph says, inter alia, “Permission to invest, import licences, quotas and tariff rate quotas would be granted without regard to the existence of competing Chinese domestic suppliers.” To the extent that antitrust policy blocks investment by foreign companies in order to protect Chinese domestic suppliers, then it’s a violation of this commitment. Since this is a stronger argument, it might have been better to highlight it in the text and relegate the much weaker argument about Para. 65 to the footnote.
Finally, the report injects a nice bit of comedy into the subject by showing what happened to the supposedly confidential submissions of InterDigital to the NDRC during the latter’s investigation of the former: they ended up on Chinese television! If you look in the upper right hand corner of the document shown at 0:20 in the clip and in the screen shot below, you can see the characters 保密文件 (confidential document). I don’t think any lawyer working with foreign clients dealing with Chinese regulators believes confidential submissions will really stay confidential and not get leaked to competitors, but we never had this kind of smoking gun before to validate the belief conclusively. Actually, this is not just a smoking gun; we are watching the gun actually being fired. Hats off to the intrepid researcher who found this broadcast and noticed this outrageous and irresponsible leak.
Saturday, August 23, 2014
I recently came across an open letter to Xi Jinping published in April 2014 in the medical journal Transplantation on behalf of The Transplantation Society. The letter notes with approval the government's adoption of new policies. "Nonetheless," it continues, "TTS remains skeptical about the enforcement of Chinese government’s policy and law. Chinese media report that even as the new program is being piloted, it has already been infiltrated by persons driven by the same corrupt practices who have assumed authority for the distribution of organs."
Here's the link.
Thursday, August 21, 2014
Rachel Stern at Berkeley and PhD student Tobias Smith have done the community a great service in not just putting together a list of key primary source documents in Chinese law and where they can be found, but also uploading the texts themselves. The documents range from the Qianlong Emperor's famous haughty memo to King George III in 1793 to the equally famous (in its own way) 1967 People's Daily editorial, "In Praise of Lawlessness" to the infamous Document No. 9 of 2013, a key document in the current crackdown on heterodox thinking.
Here are the links: