Long Time Coming

The Prospects for Democracy in China

John L. Thornton

From Foreign Affairs, January/February 2008

Summary:  Is China democratizing? The country's leaders do not think of democracy as people in the West generally do, but they are increasingly backing local elections, judicial independence, and oversight of Chinese Communist Party officials. How far China's liberalization will ultimately go and what Chinese politics will look like when it stops are open questions.

JOHN L. THORNTON is a Professor at Tsinghua University's School of Economics and Management and its School of Public Policy and Management, in Beijing, and Director of the university's Global Leadership Program. He is also Chair of the Board of the Brookings Institution.

Paralleling the rise in the quality of judges and prosecutors has been the change in the status of China's lawyers. Before the late 1980s, all lawyers were employees of the state; private practice did not exist. The first "cooperative law firms" appeared in 1988-89, and today China has 118,000 licensed lawyers practicing in 12,000 firms. (To compare, the United States has more than eight times as many lawyers for a population one-fourth the size of China's.) The growth of private practice has propelled the further professionalization of the system as a whole, partly because lawyers need to win cases (or at least lighter sentences) for their clients in order to prosper. Prosecutors still win over 90 percent of their cases, but as the quality of lawyers has improved and arguments have grown more intricate, prosecutors -- and judges -- have had to improve their own competence. Party bosses still interfere in the judicial process, and the central government still decides politically sensitive cases, but most observers agree that with disputes becoming more complex, the frequency and degree of such interference are declining.

China has adopted a number of major statutes intended to protect citizens from government wrongdoing. The Public Servants Law of 2005 sets a high standard for conduct by officials. The State Compensation Law of 1994 is meant to make amends for government failures. Perhaps most significant, the Administrative Litigation Law, adopted in 1989, enables citizens to sue the state; some 13,000 suits were filed in the law's first year. Today, more than 150,000 cases are filed annually against the government, and several successful ones have been hailed in the media.

Still, Chinese officials acknowledge that the judicial process remains rife with problems. One of the most serious obstacles to impartial verdicts is the web of personal relationships known as guanxi -- bonds forged over years by the exchange of favors and assistance -- on which so many decisions in China are based. These ties can have an especially constraining effect on prosecutorial and court decisions. Judges in China routinely talk to the parties in a case privately, creating situations in which guanxi and corruption can readily contaminate the process. Some experts have suggested raising judges' salaries and taking other steps to create a judicial elite distinct from other government officials in order to address this endemic weakness.

China's main challenge is no longer the lack of a comprehensive legal code but the chasm between what is on the books and its implementation, especially at the local level and in politically sensitive cases. Rights guaranteed by the landmark Criminal Procedure Law of 1996, such as timely access to counsel and exculpatory evidence, are often denied or simply ignored. A small but growing group of private lawyers -- sometimes referred to as "rights defenders" -- take on sensitive cases and unjust prosecutions, in part to highlight instances in which the judicial system itself violates the law. Although they rarely win and are sometimes themselves harassed or even jailed, these activist lawyers believe that insistently pointing out the discrepancy between the official goal of a fair judicial system and the reality on the ground can over time narrow the gap.

Another major obstacle is the sway that local officials continue to hold over the courts. Local CCP committees are integrally involved in the appointment of judges and prosecutors, and local governments have discretion over salaries and budgets throughout the judicial system. The situation shares some similarities with the Chinese banking system a decade ago, when the influence of local officials over bank branches resulted in a vast pool of so-called policy loans. The explosion in nonperforming debt eventually forced Beijing to spend $60 billion from central government coffers to bail out the banks, after which then Premier Zhu Rongji pushed through a reorganization that transferred final authority over personnel and loan decisions to the banks' headquarters. Banking reform may offer a promising model for the restructuring that the judicial system needs.

According to the 1999 amendment to the constitution, China is now officially a "country governed according to law." But the CCP, not the government, holds ultimate power. An increasing number of scholars argue that what the country needs, therefore, is a party and party members who unambiguously understand that they are not above the law. One proponent of this view, Professor Zhuo Zeyuan, of the Central Party School, last year gave a two-hour talk on his ideas to all 24 members of the Politburo. A Central Party School leader told me later that the proper relationship between the ruling party and the constitution was unambiguous: the CCP should be governed by the law. As with so many things in China today, the rub is the gap between theory and practice.

The CCP firmly maintains the levers that control the courts and manipulates them when necessary. In addition, it operates a separate, parallel system for dealing with errant party members that includes the use of detention and interrogation and in some cases is more draconian than the regular legal system. Recently, there have been signs that the party may be starting to see the need for more due process in its practices. Professor Jerome Cohen, of New York University Law School, one of the West's foremost experts on the Chinese legal system, has noted that local party organizations in at least 20 provinces have established a disciplinary system for CCP members that includes guarantees such as a notice of alleged wrongdoing, the opportunity to defend oneself against charges (including the right to call supporting witnesses), a statement of reasons for a final decision, and an opportunity to appeal. Some of these rights have long been in the CCP charter but were never implemented seriously.

Chinese leaders appear to realize that the China of 2008 is far too complex to be ruled entirely by fiat from Beijing and has to be governed by laws through a competent legal system enjoying the public's confidence. Lack of faith in the courts is one reason people take to the streets, and official figures show that tens of thousands of public protests occur in China each year. It is not surprising then that leaders such as Premier Wen want the party and the state to stop interfering in routine judicial matters. But the leadership still insists on controlling sensitive cases and the judicial system at the macro level. The question is whether the CCP can succeed in building a fair and independent judicial system while maintaining control at the very top.

OVERSIGHT