In November 2011, Wang Sixin, a law professor in the Communication University of China, opined, “In India, the common law tradition allows judges to begin litigation just based on a news report or a letter from a petitioner, whether [the petitioner is] a lawyer or not. China needs to adopt this practice.” This suggestion of his sounds quite ostensible considering a nation where freedom of speech and expression is highly censored and the judiciary has been used to further this dictatorship of the State. The same was the cruel case in Yiwu city with the Indian diplomat, S Balachandran, who was denied food and medicine despite his repeated requests that he was a diabetes patient; this went on till he actually collapsed and had to be rushed to the hospital. Balachandran was trying to present the case for the release of two Indians who had been kidnapped by Chinese traders because their Yemeni firm had not yet paid some dues. This blatantly ruthless and inhumane attitude displayed by the Chinese judiciary almost in connivance with the Chinese businessmen defines the attitude of the Chinese administration. Till a few years back, if you were a Chinese villager having more than one child, the government tractors would have mowed down your residence – an act that defines the Chinese sense of cruelty, or should I say Chinese torture. Needless to say, the poor villagers never got any support from the judiciary.
The Chinese judiciary has never been independent! In fact, it was in a muddle especially during the Cultural Revolution that curbed its functionality completely between 1966 and 1976. The jurisprudence was revived after 1976 and thence, a new legislation came into being by the end of 1980 under the purview of Organic Law of People’s Courts. Consequently, a new era began, marked by a paradigm shift in the country’s legal system! On the brighter side, the system was made very strong in order to encompass the entire nation under the judiciary system. The number of judges and associate judges, which was at meagre 50,000 in the 1980s was increased to 131,460 in the 1990s, and then again augmented to 258,000 in 2000s – an increase of 416 per cent! This means that the judges-to-population ratio of China is now around 1 to 8,600, which is in close range to the US ratio of 1 to 8,826 – something that we in India are attempting to dream about since the last 64 years!
Despite these impressive figures and massive infrastructure, the Chinese judiciary suffers from numerous problems that affect the very nucleus of the system. It is neither independent, nor are there any standards to determine their independence. The single State party’s influence doesn’t permit the judiciary to be impartial and unbiased, especially since the Communist Party of China keeps perpetually interfering with the court’s proceedings. Clearly, a non-democratic setup never had any space to acknowledge and appreciate the essence of a free and independent judicial system. Further, the funding of the judiciaries is not streamlined uniformly as more developed regions like Beijing, Shanghai or Guangdong have substantially higher disposal of resources than other regions. With better infrastructure, communication and salaries, these regions attract the best judges whereas the remote areas face veritable financial hardships – and lack of quality judges. This has forced many backward regions to augment litigation fees to discourage the parties from filing law suits! As of date, a discriminatory funding ploy by the Chinese government has led to a situation where the jurisprudence of certain areas has been pushed to the limit! In simple words, flow of funds is decided by the State depending upon the freedom the government wants to provide to a particular province. Thus, the remote areas are allocated less funds to ensure a weak judiciary that eventually deters citizens from filing suits and from protesting against atrocities. The residents of such targeted areas are kept entrapped in a situation wherein breaking rules would lead to serious perilous consequences.
Globally, the judiciary system – a true pillar of the economy – is kept independent of political interference and has absolute power with independent staffs that hail from no political party – be it the ruling party or the opposition or any third party. Contrary to this philosophy, China’s judiciary is not separated from its political process. There is no separation of power between the government and the judiciary! The National People’s Congress (NPC) reigns supreme there and has every right to undermine and destabilize the independence of judiciary. The judicial appointments (judges and jury members) are under the ambit of NPC and so is the supervision of it. Thus it is this ruling party that literally decides the person who would chair the court – or shall I say, would decide the fate of the aggrieved party. Putting things into a better perspective, one needs to have a political party affiliation to be a judge in China. As a quid pro quo, it is essential for the judges and the jury to follow the decree of party leadership and perform a variety of functions! The court also acts as a civil law magistrate and has to find evidence for any criminal prosecution that is being handled! A judge’s role is more like an intermediary’s, who explains the policies brought about by the government (or at least the legal side of such policies)! Therefore, performing the role of a judge – as it is being performed in most countries – is only a miniscule part of a judge’s assigned functions and not the prime duty. Alarmingly, a judge in China might not ever have given any verdict but might have performed other roles stated above! He might be merely a little better than a party worker, yet he is called a ‘judge’. In this way China has bloated the figure of its total size of judges – but in reality it is just a farce.
Most interestingly, the Supreme People’s Court (SPC) has to submit a periodic report of its functioning to NPC for approval and review. Thus, today, NPC is seen poking its nose in almost all judicial affairs and individual cases and manipulating the court’s decision. Local governments have the power to literally advice the court on cases related to the government and also forces the courts to bluntly dismiss any appeal that can be harmful during proceedings. Local courts rarely favour the public and most of the times, drag the cases for indefinite time period. The appointment of judges is also influenced by local governments which make it impossible for the courts to be impartial especially in remote areas where the government can’t reach frequently. The lower courts approach the higher courts for directly getting involved in judgments. This snatches away the opportunity of the litigant to appeal before the higher courts, which may have already given an uninformed verdict without giving the claimant a chance to present the case before the higher courts! In essence, these courts have puppets setup by the local government.
Such a near-collapse of the judiciary has led to blatant abuse of laws and rights. The faulty judiciary system had led to rampant human rights abuse and containment of freedom. Since the last two years, international human rights organisations and global forums have been increasing their pressure on China to contain their brutality (in the veil of justice) and increase the flow of freedom within the nation. In order to reduce international criticism, the government is now resorting to home confinement, abductions and kidnappings, instead of trials and officials arrests. This has not only allowed them to get rid of international pressure but also helped them in manipulating numbers when it comes to human rights abuse.
As per the Chinese Human Rights Defenders (an association of human rights’ activists and groups) more than 3,500 people were detained (unofficially) without any evidence in 2010, but this figure is again quite skewed as the actual numbers is still unknown; it is estimated to be above 5000. The poor funding of the courts and measly rewarded judges make the courts in China look primitive and non-functional. The paucity of funds hinders courts’ activities and enforcements. By end of 1997, about 2 million cases were awaiting enforcements! The quality of verdicts, the impartiality of the courts, and effectiveness of judicial procedures suffers badly because of funding problems. From the basic level courts in the hinterlands to high courts in provincial capitals – all are funded by the local governments – and invariably there is a vituperative slash in the earmarked funding whenever any verdict goes against the interests of the county and its local bosses! The funding mechanism of judiciary is totally fragmented; and this acts as an aberration to the very tenets of philosophy guiding ruling of the country! In China, the situation now is such that the entire judicial system is corrupt. It is a common practice for the judges to accept favours from the plaintiffs in exchange of partial judgments. As per the latest data available, more than 900 judges were punished for corruption in 2003 and 2004 and around 200 were prosecuted in 2007. However, the actual crime under which they were charged was largely kept secret. A few months back in 2011, three judges were even shot dead at a court in China’s southern Hunan.
With a sole objective to curb freedom, if on one hand the government has deliberately kept the judiciary weak, on the other hand they have graciously empowered the police forces. It was during the Cultural Revolution that the police reached the zenith of their power. In order to dismantle protests and gatherings, units from the police force were bestowed with powers that were above the law; and gradually they became the only arbiter. Police frequently even resorts to physically abusing lawyers and arrests them on false charges!
To curb any kind of protest or agitation within, China has increased salaries of internal police personnel; even as it continues to imprison political activists recklessly. More than $70 billion was allocated for public security in the last fiscal, out of which a large part was redirected towards internal security. So much so, the budget for internal security almost matches the budget for national defence spending. This one step ensures that the officials (especially the law keepers) would not misuse their power and would not protest against the government. They would only pick up arms against those who speak against the government and not otherwise. These officials are provided with the best of technology, weapons, censorship-equipment and extensive power. They are a set of individuals who are perceived above the law and have the power & authority to go to any extent. Any activity that can take a shape of a revolt or a protest is curbed at the budding stage itself – be it labour unions or disputes of groupism against the government or its machinery.
Since the last seven years, the government is holding protestors in undisclosed locations that are infamously known as the ‘Black Jails.’ These are not conventional prisons but are buildings that are under government control. From hotels to government hospitals to any building, anything can be used as Black Jails. The detainees are physically and mentally tortured and kept in animal-like conditions in these jails. And above all, the government don’t discriminate among detainees with respect to sex and age. Both the sexes are equally tortured and detainees range from the minors to elderly. Interestingly, most of these jail units are maintained by private security companies that work in close coordination with the local police. However, a few weeks back, the Chinese government had announced their intentions to crackdown on such prisons and security companies. But then, like always, this crackdown-move is mere tokenism, as the exact number and location of such facilities are still unknown and undocumented.
On the one hand, where the entire world is gradually banning capital punishment and is resorting to the same only in extreme conditions, China is going absolutely reverse! On an average, China reportedly executes more than 20 criminals every single day – that annually boils downs to thrice the number of executions that the entire world executes combined. To top this, China even understands how to economically utilise its prisoners for the nations’ advantage. China is one of those few nations who are also into exporting their prisoners to other countries. Since the last couple of years, China – on a contract basis – had deployed its prisoners for construction projects in different Asian nations. This again is a violation of human rights. Here, I don’t need to describe the atrocities that these prisoners go through while undertaking the job abroad. Most of these prisoners work for Chinese companies having their off-shore units in South Asia and Central Asia. The Chinese companies rarely employ the locals and rather prefer to ‘buy’ these prisoners at a lower cost from the mainland. This further saves them from national human rights laws that are laid down by the governments of other nations where these Chinese companies operate from.
In order to curb sharing of information and any political upheaval, the Chinese government has put strict censorship rules on various social networking sites – from YouTube to Twitter. In a well known example, during the recent uprising in Libya, if one were to have searched the term ‘Libya’ on the Internet from within China, few or nil search results would have been displayed. Even content related to Tiananmen Square massacre is heavily skewed with very less information available on the same. Similar censorship is applied for all keywords related to Tibet, Dalai Lama, Uighur, Ai Weiwei and other sensitive issues. The government controls and filters all troubling information being sought over the internet by using a firewall, which is sarcastically known as the “Great Firewall of China.”
The freedom of religious practice is also under a heavy scanner. All religious groups are required to register themselves with their respective province’s authorities. Members of unregistered religious groups – however minor they might be – are persecuted and illegally detained. In fact when it comes to illegal and arbitrary detentions and cultural censorship, it would be criminal to miss out the cases of artist and political activist Ai Weiwei, Zuoxiao Zuzhou, Liu Xiabao, Liu Xianbin, Ran Yunfei, Ding Mao, Chen Wei and Gao Zhisheng.
China’s constitution does ensure freedom of press, but then the Communist Party is the supreme authority when it comes to content creation. Around 70-80 per cent of all content in media has to be inclined towards the ruling party and any diversion may lead to legal prosecution. Moreover, under the Protection of State Secrets law, a media house can’t reveal anything that is perceived as secret by the government. Consequently, the government uses such acts to manipulate print output and coverage. Horrifyingly, any negative publicity may even lead to the death penalty as well. Zhao Yan, Shi Tao, Ching Cheong, Yu Huafeng, Li Minying and many others were arrested under the pretext of Protection of State Secrets, as their opinion pieces were critical about the government and functionary. Apart from them, many other journalists – the latest being Zhang Ping – have been forced to resign as they appeared to be a threat to the ruling party. Paradoxically, China’s constitution, under Article 35, promises freedom of speech, press, assembly and procession & demonstration; but then the laws are tweaked in such a manner that most of these promised rights have no meaning in reality.
There is no denying the fact that freedom and justice are selectively and discriminatively distributed in the nation. But if one goes beyond conventional thinking, then it would be clear that the laws laid down on paper are quite comprehensive for the larger good of the ruling party. Everything – from censorship, immediate detention, religious screening, strict laws against groupism, capital punishment and many other such stringent rules – without any iota of doubt has been successful in keeping anti-social elements at bay and in deterring any kind of social instability and unwanted disturbance. But then, the moot point here is not about the way freedom has been curbed, but the way the political leadership has been misusing & abusing these laws to their advantage. It is high time that they start giving some real freedom to their citizens.
I want to end by saying that it is perhaps up to the Chinese citizens to decide whether they want to stand up against such authoritarian collusion of the state and judiciary. But if citizens of other countries also start becoming victims of such authoritarian attitudes – as has happened with the Indian diplomat this time – then it’s time for the international community to join hands and strongly protest against this so that the pressure created forces China to look at human beings more humanely and with more respect towards human rights. This is one thing that China must do in order to make itself a true leader in this globalized world.
- 05 January 2012 |
- Dr. Arindam On China