While the 18th National Congress in China has ended, there's still plenty to look forward to as the new Standing Committee implements its own version of the Party ideology in the next ten years. One subject in particular that Chinese citizens and China watchers are paying close attention to is legal reform.
Carl Minzner, Professor of Law at Fordham University, talks here about the ways China's legal reforms have ebbed and flowed, speeding up in the early 2000s, but then slowing down again after legal activists began to take the government at its word, attempting to use the letter of the law, the Chinese Constitution, to push the envelope for change.
A distinct rollback of earlier legal reforms is easily seen, Minzner says, in the cases of two activist lawyers — Chen Guangcheng, who fled to the United States in mid-2012, and Xu Zhiyong. Whereas both men were able to advocate freely for those in need in the early 2000s, both have since had their wings clipped.
Minzner's video is one in a series of interviews we have conducted with the help of our friends at ChinaFile examining China's leadership transition from a variety of viewpoints. (A transcript of Solomon's remarks appears below, in italics.) Additional interviews in the series, along with the rest of Asia Society's coverage of the transition, can be found here.
I think certainly, in 2002, 2003, the last point where you had a full-blown transition of the top leaders in the Chinese party, there was an atmosphere of quite a lot of hope associated with where legal reform might have been going, particularly in the late 1990s, Chinese authorities had pursued a range of reforms, professionalizing the judiciary, opening up space for public interest, lawyers that many saw as creating some space for legal reform activities going forward. And particularly, after the leadership transition, right around the period of the SARS, the major public health crisis that took place in China, in the Spring of 2003, Chinese leaders took steps that seemed to indicate an increasing openness, particularly for legal reform, at that point.
In the spring of 2003, there had been, right at the point where the SARS crisis had broken out. There had been a sustained burst of activity focused on the custody and repatriation system, which was an administrative detention system used to round up migrant workers who had overstayed their residence permits or not had proper papers to be in urban areas. There was a particular incident down in Guangzhou, the Sun Zhigang incident in which a migrant worker had been beaten to death at the hands of the local police. This caused a media sensation when newspapers such as the Nanfang Zhoumo, the Southern Weekend took a real active interest in this case. Generated a huge amount of publicity. Particularly at that point, you also had, at the very same time, a number of activists, public interests, lawyers, and law professors who took an interest in the case and began giving media interviews, but also submitted a petition to central party authorities, challenging the legality and constitutionality of that particular detention system. Remarkably, Chinese authorities responded, not only because of the legal challenges, but also because of the public interest associated, the media pressure associated with the case, and they annulled the entire system. Many at that point, in the summer and fall of 2003 thought this was sort of the birth of a new era in which public interest lawyers, constitutional challenges, legal challenges, might start to push the system forward, to become more open.
China's not a monolith. There are always people within the system who indicate willingness and sometimes conduct useful reform experiments. However, you can definitely say since about 2005, there's been a sustained rollback of many of the earlier signs that people had thought might be hopeful developments for gradual reform in China.
Well I think one of the best ways of deciding or examining how the legal reforms or the legal environment in the 2002-2003 period compares to the environment today is to look at two particular individuals. Think first of Chen Guangcheng, the blind activist who left China earlier this year, came to the U.S. embassy, and is now at NYU in New York. Back in 2002 and 2003, he was openly operating, he was having a measure of success in his efforts to represent the victims of local government abuses in his particular town in Shandong province, and then just after 2005 he ends up going to jail, then he ends up under house arrest — completely legal house arrest — for a number of years. So there's a distinct difference between his ability to operate in 2002, 2003 and the situation five or six years later.
Take another example, Xu Zhiyong, noted legal activist who in the 2003 period had been one of the key individuals attempting to use the media, attempting to use legal challenges to try to overturn the custody and repatriation system. After his success and the success of others like him who were working on these issues in 2003, he became sort of one of the key members starting the organization the Open Constitution Initiative, which sought to bring similar challenges, which sought to engage in similar activism on a wide range of other issues. In 2009, authorities move in, they shut down the organization on tax charges, and they subject him and others like him to much more heightened pressure and harassment.
if you're trying to figure out what the role of the constitution is in the Chinese system, you have to understand that it's quite different from anything that you would encounter, in particular, in the American system. The Chinese constitution itself is not judiciable. It's not a document that contains legally-enforceable rights that the courts are entitled to enforce. China is a one-party state. The constitution doesn't hold that weight. At the same time, that document — it has expansive language that both people within the party seek to use to sort of indicate their intention to improve the conditions of Chinese citizens and protect a wide range of rights, and precisely because the people at the top of the system seek to use it in that particular way, that means that individuals lower down in the system, or ordinary citizens also will throw it back in the faces of officials and say, well you have these words on paper, and you really should be attempting to respect them.