07 November 2012

Why Criminal Justice in China Still Matters: A Response

Stan Abrams at the China Hearsay blog recently posted a provocative piece entitled “Note to Media: High-profile Criminal Cases Are Not Representative of China’s Judicial System.” If you haven't read it, I  encourage you to do so now in order to make sense of the discussion that follows, because I’m not going to reprise his argument in detail or provide a lot of quotes.

But, in a nutshell, Abrams takes issue with the way that foreign journalists covering China write about China’s legal system—and its courts in particular. Abrams faults these journalists for being overly influenced by “high-profile criminal cases,” ignoring the real story about what the Chinese judicial system actually does on a daily basis, and, because of their single-minded interest in cases involving “hot-button political issues” or “media-savvy dissidents with Western contacts,” providing a skewed view of reality. 

It’s not my intention to offend when I point out that this is not a particularly original argument that Abrams is making, either in the specific version concerning China’s legal system or in the more general version that takes issue with Western reporters’ tendency to seek out negative stories about China. I’d even acknowledge that it’s probably the case that reporting on China’s judicial system is overwhelmingly focused on criminal matters in general and a relatively small number of such cases in particular. I suspect that reporters and their editors could provide (and most likely have already attempted to do so, once or twice) explanations for why this is so, but that is not my main concern.

At its root, Abrams’s plea is for balance. He feels that overemphasis on a few notorious criminal cases does not do justice to a Chinese court system that is able, despite serious capacity issues, to handle successfully the majority of cases put before it. Although he does not say so as directly, I suspect that part of his grievance is also based on a sense that it is important to acknowledge the effort that has gone into bringing Chinese courts to this point over the past three decades, as well as optimism that continued efforts at legal reform and capacity-building will lead to further improvements going forward.

I don’t know Mr Abrams outside of the virtual sphere and I’m not a regular reader of his blog. Based on what I know of him, however, I am willing to bet that he is far more familiar with how civil (and possibly administrative) actions are handled in China than he is with the Chinese criminal justice system. For what it’s worth, I openly acknowledge that my familiarity with China’s legal system is probably the mirror image of his. For that reason, and for the sake of argument, I will grant his basic premise that, at a certain level of abstraction, China’s system of civil litigation functions at a generally high level. And it is beyond question that civil and commercial matters dominate China’s docket, meaning that, as Abrams suggests, most of what Chinese courts do may indeed tend to look like what courts do in other jurisdictions.

However, I think it’s important not to jump to the wrong conclusions about why China’s courts operate as they do. If Chinese courts are highly functional in the civil sphere, it is not because of commitment to “rule of law” as some general, universal principle but, rather, because having an efficient, rational, and predictable legal system supports the economic development project and, therefore, is in the overall interest of the Chinese Communist Party. On the other hand, preserving social stability is another overriding interest of the party (indeed, one that is intertwined with the interest in economic development), and the operation of criminal justice in China has largely reflected that.

It is not, in other words, because Chinese civil-court judges are more advanced in their thinking and committed to rule of law compared to criminal-court judges. In fact, for most of his post, Abrams excludes criminal cases from the kinds of cases in which “rule of law is functioning very well, thank you.” Towards the end, though, he suggests that because the “vast majority” of criminal cases do not suffer from the kind of “political interference [that] is common in certain types of cases,” they should not be used “to make a general assertion about rule of law in China.”

Here, I think the argument is too simple. For one thing, recent research by Professor He Xin suggests that court adjudication committees—committees made up of court officials not directly involved with hearing cases and linked personnel-wise to party organizations responsible for “guiding” judicial work—weigh in on criminal matters far more frequently than in other types of litigation, even in routine cases. Moreover, the presence or absence of such direct political interference in court decision-making is not the only standard against which to measure judicial independence or, particularly, rule of law. New empirical research by Prof. Mike McConville and his collaborators on the recent volume Criminal Justice in China: An Empirical Enquiry shows the extent to which criminal cases of all stripes and at all levels are riddled with procedural flaws that undermine their substantive outcomes. That Chinese courts cannot provide an effective forum to remedy these flaws—even when they violate Chinese law and (especially) when they violate China’s constitution—and routinely hand down criminal sanctions despite them is also an indictment of their lack of independence and powerlessness as promoters of rule of law.

McConville makes another argument that is relevant to Abrams’s post. Taking a comparative perspective on how criminal justice operates in China and other jurisdictions, McConville contends that efforts to reform criminal justice through legislation and other rule-making does not tend to change the way in which actors in the criminal justice system behave as much as it changes the way that they account for their behavior. Internal institutional rules enable actors like the police to make end-runs around black-letter legal proscriptions in the name of “higher goals” valued within the system, such as preserving social stability through crime-fighting.

I’m not as convinced as McConville about the inevitability of this sort of cynical institutional adaptation to reform initiatives, but I do agree that legal reform in China is likely to continue this pattern as long as the legal system serves to further political ends that are not necessarily congruous (and often patently incongruous) with universal human rights principles. In any case, I think that it’s highly misleading to suggest that even the routine operation of criminal justice in China resembles the kind of “rule of law” observable in the civil law space.

So, having said all that, what about the question of fairness that Abrams raises? Because I don’t see China’s judicial system as operating in completely separate modes—an autonomous, rule-of-law mode in the civil sphere and a politically dominated, procedurally challenged mode in the criminal sphere—I think that you don’t really gain much more understanding of how the system “really operates” if you dissociate one from the other. I’m all for paying more attention to the operation of civil justice in Chinese courts, but only if such attention doesn’t simply end at the superficial conclusion that rule of law ideology has taken firm root in Chinese civil courts and criminal courts are simply waiting to catch up. Both spheres operate according to an underlying utilitarian logic that suggests that these divergent descriptions are both accurate and likely to remain so until more fundamental changes are made at the political level.

In other words, high-profile criminal cases are not necessarily the outliers that Abrams suggests they are. And as far as fairness is concerned, then, if asked to choose between pursuing a fair hearing for the efforts of Chinese judges and legal reformers and a fair hearing for suspects and defendants facing imprisonment or death in China’s criminal justice system, I suppose I have already made my choice.