First rule of law: what the party says, goes

PUBLISHED : Tuesday, 09 June, 2009, 12:00am
UPDATED : Tuesday, 09 June, 2009, 12:00am

In 1982, China enacted a new constitution that put the rule of law at its centre. The legislation was regarded as an effort by Beijing to move closer to the legal systems of other countries.

But 27 years later many citizens struggle to get inside a court to have a civil case heard. And those lucky enough to receive a hearing often walk away wondering if justice has been served.

Lack of access to the legal process and fears about corrupt courts were two of the main concerns raised by netizens in April, after the Supreme People's Court and almost 500 lower courts invited comments on the legal system to be e-mailed to their newly opened mail boxes.

The other notable complaint was the cost of bringing a lawsuit, including both lawyers' fees and other expenses.

None of the above will be news to anyone who has tried to seek a legal remedy on the mainland. Local courts are notorious for their unhelpful ways - for example, often not letting litigants know what evidence they need to present, or requiring them to complete daunting amounts of paperwork. And that's just for non-controversial, standard civil lawsuits.

When it comes to filing a suit against officials or a government body - so-called administrative cases - the man in the street has more chance of winning the lottery than finding a court anywhere in the country that will accept such cases.

Last week, one prominent Beijing lawyer compared an ordinary citizen trying to sue the government or its cadres to an egg hitting a rock. No one knows this better than the parents of the children who died when their schools collapsed like paper houses during the Sichuan earthquake last year. Not one case alleging negligence by the officials in charge of school construction has been accepted by a Sichuan court.

It was a similar story in Hebei and Henan provinces last year, when courts refused to hear cases brought by parents whose children had died or fell ill during the contaminated milk scandal.

At the same time, lawyers attempting to help the Sichuan, Henan and Hebei parents were warned not to assist them. And there lies the problem with the mainland legal system.

For all the talk of the rule of law, it remains strictly under the control of the Communist Party at every level. In particular, lower court officials are part of the local government machine, which makes it easy for their superiors to lean on them when sensitive cases come up.

The recent scandal involving officials in Xishui county, Guizhou province, who had been paying for sex with so-called 'backpack girls', or 13-year-old schoolchildren, offers a snapshot of the difficulties involved in bringing a case against cadres.

First, the officials were charged with having sex with under-age prostitutes, rather than the far more serious charge of child rape. Then, when the case came to the local court, it was heard behind closed doors and no verdict was reached. It was only after netizens reacted with outrage that the court moved to review the charges.

But official interference in the legal system doesn't just happen at the local level. For cases as emotive and well-known as the Sichuan schools collapse and the recent food and safety scandals, the orders not to allow people their day in court come from Beijing. Victims of such high-profile cases are bought off with compensation and assurances from central government officials that such lapses will never happen again.

That, though, is no substitute for justice and, almost 30 years on from the introduction of China's new constitution, there really is no excuse for not implementing a genuine rule of law.

In an age of almost daily internet exposes of corrupt officialdom, the failure to do so appears to confirm that the legal system is there to protect the party rather than the people.

David Eimer is a Beijing-based journalist