People’s Republic, at 50, Is Embracing Rule of Law

Wang Xinzhou’s son will probably never walk again, not after doctors at a local hospital botched treatment of his broken leg--twice.

First they reset the bone so badly that the splintered ends failed to join up. A second operation was even more disastrous, triggering an infection that festered, undetected, beneath the cast for nearly half a year.

The young man was finally sent home with a right leg 2 inches shorter than the left and unable to bend at the knee. The 24-year-old now spends most of his time lying down.

But his father refused to take the news that way. Instead, Wang and his wife, simple farmers in this provincial outpost, struck back in a manner unimaginable only a decade ago: They took the government-run hospital to court.

What is more, they won--even though in suing the hospital, they were essentially fighting the Chinese state, which has traditionally acted with impunity throughout its 5,000-year history.

“I didn’t know much about the law before,” said Wang, 52, who called a local legal-aid hotline for help. Now he thumbs purposefully through rumpled leaves of paper bearing official court seals and points out relevant passages with a dirt-stained finger.

Lawsuits like Wang’s are multiplying across China as ordinary people learn to stand up for their legal rights in a society long accustomed to not having any.

As China marks the 50th anniversary of the People’s Republic today, reform-minded officials and scholars are struggling to strengthen those rights and transform the very nature of Communist rule, changing this nation from one governed by whim--from the first emperor to the present regime--to one governed by law.

The reformists see their work as a way of bringing some order to a dynamic, often chaotic, society in transition between Marxism and the free market, where central control has already eroded and local authorities often go their own way, heedless of Beijing.

Entrenched Culture of Autocratic Rule

Changing the way China is governed, however, is a monumental task in a land with an entrenched culture of autocratic and arbitrary rule, a Leninist system that still wields enormous power over people’s lives and a judiciary riddled with corruption, ineptitude and political interference.

But just as monumental, experts say, are the potential benefits of establishing the rule of law in the world’s most populous country: bringing China into line with international standards of justice, better safeguarding human rights and gently tipping over “the first domino,” as one hopeful Chinese scholar put it, toward a pluralistic, more democratic state, with a government that is itself subject to the law, not above it.

“This would put the government within the scope of the law and prevent it from abusing its authority or exercising absolute power,” said Jiao Hongchang, a professor at the China University of Political Science and Law in Beijing. “It’s a way of checking the government.”

It is also the only way, as Beijing knows, to effectively run a capitalist economy dependent on foreign investment: with enforceable laws governing contracts, trademarks, stocks and other market forces.

No one doubts that the chief engine behind China’s legal reforms is its 20-year economic overhaul, on which the Communist regime has banked its survival.

Top leaders from President Jiang Zemin on down now publicly tout rule of law as the way forward in building “socialism with Chinese characteristics.” In March, the national parliament amended the constitution to include a provision explicitly setting rule of law as the standard for Chinese government--a milestone in many scholars’ eyes.

“Previously, our leaders derived their legitimacy from their might, not from rules or laws,” said He Weifang of Beijing University. “The new generation of leaders . . . lacks that kind of backing, so they have to find legally based sources of legitimacy.”

In the past several years, awareness of legal rights and recourse has percolated impressively through the Chinese public, emboldening increasing numbers of people from all segments of society to use the law to call their superiors to account.

Two years ago, a coalition of 2,164 peasant households in inland Sichuan province defied threats from local officials and sued them for levying taxes in excess of the amount allowed by Beijing. The peasants won.

In Henan province, a man went to court seeking compensation from a precinct police chief who ran over and killed the man’s 11-year-old child while driving drunk. The police chief was judged responsible and later executed.

Even the People’s Daily, the mouthpiece of the Communist Party, could not escape rebuke in a libel lawsuit filed by Xi Hong, a worker who was fired after the paper described her as “weak and incompetent.” Although the newspaper dragged out the case for years, the court ultimately ruled in Xi’s favor and ordered that her job and reputation be restored.

The cases were all possible because of changes to China’s legal code in 1990 and 1991 that for the first time spelled out procedures for citizens to sue government bodies.

About 100,000 such lawsuits were filed last year. Not every fight against city hall ends in success: For every victory, experts estimate that at least one or two other cases result in defeat for the plaintiff.

Analysts warn that China’s judicial system remains largely a political tool--witness the “subversion” trials last December of dissidents who sought to form an opposition political party.

Still, that citizens now have an avenue to challenge the authorities, even at fairly low levels, represents a major step forward, advocates say.

“It’s imperfect, but it embodies the ideal--which is not to be taken for granted in many parts of the world--that the government is itself constrained by law,” said Paul Gewirtz, a Yale Law School expert on Chinese legal reform. “That’s the central element of what we mean by a society guided by the rule of law.”

The concept is a novel one in China, where rulers since dynastic times have laid down the law but held themselves above it.

After the Communist Party proclaimed the founding of the People’s Republic in 1949, the new government continued that pattern, ruling with an iron fist through a Leninist administration that exercises near-total power over people’s lives, determining their jobs, housing, income and number of children.

The law was simply the word of the “Great Helmsman,” Mao Tse-tung. During the anarchy of the 1966-76 Cultural Revolution, when radical leftist ideology trumped common sense, whatever rudimentary legal system that had existed during the first two decades of Communist rule was completely shattered. Legal scholars have been trying to pick up the pieces ever since.

At the same time, China’s economic reforms have brought more personal wealth and liberty than ever before, freeing up millions of Chinese from the absolute control of their work units and making them more vocal in defending their rights, from land use to personal injury to consumer protection.

Here in Heze, a prefecture of 8 million people in the west of Shandong province, Wang Xiulian is eager to reclaim a parcel of land she had agreed to let her production team leader rent for eight years. Now that the lease is up, Wang, 46, wants the property back so she can build a house for her son.

But the team leader, a Communist Party cadre, refuses to budge. “I want everything to go according to the contract,” Wang said. “But he hasn’t honored it.”

So, like Wang Xinzhou (no relation), who sued the local hospital for malpractice, Wang Xiulian rang up “148,” the legal hotline advertised on posters everywhere in Heze. The hotline sent out a legal service provider to take up Wang’s case, which now awaits its day in court, although the official has shown signs of capitulating.

“The cadre is very powerful--he knows people who work in the township, and they’ll all back him up,” said Wang, who is worried about the possibility of official retaliation, still a very real fear in bureaucracy-driven China. But “if I don’t get that land back, where will my son live?”

Wang says she’s confident she will prevail with the help of 148. Since its inception in March 1998, the hotline has logged 26,000 calls and has become so successful in spreading legal awareness that major cities such as Beijing and Guangzhou are setting up their own lines.

Justice, however, is often elusive in a judicial system plagued with problems ranging from a lack of qualified legal personnel to the way the courts are set up and funded.

There are only 100,000 lawyers nationwide, a sharp increase from 2,000 just two decades ago but still a far cry from the U.S., which in 1997 had 885,000 attorneys to serve a population less than a quarter the size of China’s.

Trained judges, too, are in short supply. A large proportion of jurists have little to no legal background before taking the bench; many are retired army officers or other political appointees. In Shanxi province, one man was named a judge of a county court even though he only had an elementary school education.

He was eventually ousted after being caught accepting bribes, a widespread problem throughout China, where judges are poorly paid and do not enjoy the same level of prestige as their counterparts in the U.S.

Courts Independent Only in Theory

Also, because jurists are beholden to their local governments, local protectionism in everything from routine economic cases to governmental abuses of power is common.

“Courts are to be independent in theory,” said legal scholar Jiao. “But the funding all comes from the local government--the court facilities, the salaries, all the expenses, the workers--so the courts will have a local bent.”

Even when plaintiffs succeed, the courts are often powerless to enforce their judgments. Wang Xinzhou was awarded 40,000 yuan (about $4,850) in compensation for what doctors did to his son--including medical costs and damages for mental anguish--but it is unclear if or when his family will see the money.

Scholars acknowledge that China is decades away from having a trustworthy, independent judicial system. The mad rush in recent years to codify concepts such as the burden of proof, guarantee of legal representation and even Miranda-style rights for defendants doesn’t mean that such ideas have actually been carried out.

And whether government at the highest levels will let itself submit to the law is an open question. So far, the officials ensnared by the law have all been rather small fry.

“We still have a long way to go,” said Liu Hainian, a law professor with the prestigious Chinese Academy of Social Sciences. But “rule of law is the trend of world history, and no country can resist it.”