Lubman Article: Who’s Getting The Legal Upper Hand In China – Local Or Central Govt?

Another interesting piece from Lubman. When are they not ?

China’s Legal Reform Challenge: When Even Police Chiefs Get Nabbed

By Stanley Lubman

Police offiers outside the Shanghai No.1 Intermediate People’s Court in Shanghai, August 8, 2014. Reuters
Earlier this month, the police chief eastern China’s Tianjin, Wu Changshun, was removed from his posts as both bureau chief and party chief in connection with an investigation into alleged corruption. Wu had served in the public security bureau for 44 years and he headed it for 11 years.

The removal from office of a long-serving police chief in a major city is a vivid example of the problems facing Chinese law reform.

One of the aims of the proposed law reform program issued in January calls for increasing the independence of local courts from other agencies. However, the courts are known to be subject to pressure from local party officials, state officials and powerful businesses to overlook or be complicit in the very kind of illegal activities that existed in Tianjin. The story of Police Chief Wu raises broader issues about the involvement of corrupt local governments in the local economy.

According the well-regarded investigative magazine Caixin, Wu, as head of the city’s Traffic Management Bureau, had presided over 48 companies that were involved “in road maintenance, equipment manufacturing, security systems and parking lots.” He allegedly gained “personal benefits” from those companies, including a local drivers association, which required registered drivers to join and pay for membership and a traffic infrastructure company that was a “frequent winner in local transportation facility bidding.”

The Tianjin city propaganda department did not immediately respond to requests for comment on the corruption cases.

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High-level corruption is no novelty in Tianjin. The Caixin article states that Wu’s former supervisors had previously been investigated for crimes. In 2007 one received a suspended death sentence for taking bribes and embezzlement, and another committed suicide in the same year after being accused of ”abusing his power and seeking profits for his mistress,” who operated three companies that sold equipment to the public security departments and the city’s drivers’ license examination center.  A Beijing News report stated that Wu earned “undue profits” from patents for which he had applied, and that12 truckloads of “assets” were confiscated from “two locations associated with him.”

The Fourth Plenum of the Central Committee of the party that meets in October will emphasize law reform, which means that it will necessarily have to address the difficulties of promoting the rule of law and reducing local protectionism.  The Tianjin cases mentioned here suggest how deeply systems of graft can penetrate local governments and create potential obstacles to raising the level of legality. The cases also highlight the broader political culture that seriously influences much official behavior, and poses a serious obstacle to attempts to reform local courts.

In that culture, as a recent article in the Economist observes, judges are generally beholden to local interests, and wield less power than police, prosecutors “or even politically connected local businessmen.” Wu’s conduct is a notable example of the deep and overlapping reach of corruption into the political-legal system (police, prosecutors and courts).

The current program for judicial reform calls for transferring to provincial-level authorities the responsibility now held by local governments for financing local courts and hiring and promoting local judges. While that may help reduce the ability of local officials to influence legal outcomes, there’s little to keep provincial officials from seeking to protect improper lower-level activities such as illegal land seizures.

The drive for legal reform could be influenced by experience gained in the anti-corruption campaign: Wang Qishan, who is overseeing the campaign, seeks to institutionalize it by requiring local investigators to report their findings to Beijing as well as to local authorities, so the investigations won’t be quashed locally. He is also relying on public resentment to fuel his work.

There is a useful analogy here, because the goal of the efforts to advance law reform dovetails with Mr. Wang’s end-goal in the anti-corruption campaign, which  is “to fundamentally change the ethos of the Communist Party.”  Indeed, it is that ethos that must be made to give way to a different value system more closely linked to a law-based culture—which happens to be an antidote to the culture of corruption that so concerns the party leadership. If the “ethos” of the Party was turned definitively against corruption and guanxi (the exploitation of personal relationships), corruption like Tianjin’s could be held in check.

China’s determination to maintain party leadership over the legal system limits the extent of any legal reform, but any reduction of influence of the local party-state over the work of the political-legal system will help elevate procedural justice as a controlling principle.

Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law. He is the author of “Bird in a Cage: Legal Reform in China After Mao” (Stanford University Press, 1999) and editor of “The Evolution of Law Reform in China: An Uncertain Path” (Elgar, 2012).