The afternoon session of the Symposium featured Professor Haibo He from Tsinghua University Law School and Professor Yan Lin from Shanghai Jiaotong University Law School. Both offered a wealth of information about the external oversight on the implementation of administrative law in China. Both of these scholars left us with a lot to ponder.
By Kimberly Han, EALR Online Author
Administrative Litigation Law on the Ground
Professor He discussed his paper titled “Litigation without a Ruling: The Predicament of Administrative Law in China” that centered on what is happening on the ground as the administrative courts implement the most groundbreaking legislation in Chinese administrative law. We walk away from the discussion with a much better understanding of how administrative cases get resolved in China and how important judicial independence is in order to push China closer to a rule-of-law nation.
China enacted Administrative Litigation Law in 1989 where for the first time ever, ordinary citizens can bring an action against agency officials where the citizen and official may face each other in front of a judge and subject themselves to the rule of law. The noble intent behind the cutting-edge legislation was to instill legitimacy to agency actions and to contribute a sense of the rule of law in the minds of both the agencies and the affected private citizens. However, the actual implementation has wandered far from the ideal and has turned into what Professor He calls the “disillusion of judgment of law”.
Professor He mainly demonstrates this “disillusion” through the high and upward trending rate of plaintiff withdrawal in administrative cases. Professor He identified three key reasons that a plaintiff would withdraw. (1) Citizens lose hope in their case. (2) Judges feel reluctant to rule in favor the plaintiffs because the challenged initiatives come from the strong administrative agencies and politically favored mandates. The judges usually do not want to disturb the administrative will. To provide some relief to the plaintiff, judges may try to convince the agencies to change something specific to the treatment of the plaintiff without changing agency policy or overall action. However, if agency refuses the judge’s recommendations, judges might threaten to delay the case so much as to force the plaintiff to withdraw. (3) Coordination is a new and growing phenomenon that Professor He referenced using statistics, and may be one of the big agents of change in the rate of withdrawal. Coordination is essentially a milder version (at least in name) of judicial mediation. Judicial mediation itself is not expressly lawful under the Administrative Litigation Law; in fact, technically, under the law, judges are required to still conduct substantive review even if a plaintiff has applied to withdraw. However, judges routinely encourage withdrawal and few applications are ever rejected. Judges have “coordination” to describe informal facilitation of an off-the-record resolution of the case among the litigants.
Coordination is a growing trend and one that seems to lead to less transparency in the administrative judicial review system. Professor He offered some evidence that this is a turn for the worse in terms of rule of law. It used to be that judges saw high rates of withdrawal as a negative reflection upon judicial legitimacy. Since 2006 however, it’s become a positive fact and local and higher courts are racing with each other to raise withdrawal rates as a result.
Professor He ended his discussion by concluding that although the passing of the Administrative Litigation Law in China was a step in the right direction and filled with hopes of moving China towards a rule of law system, the judiciary simply does not have enough substantive powers and is not always able to render decisions according to the rule of law. A necessary ingredient to the faithful implementation of the full intent of the Administrative Litigation Law in China requires a truly independent judiciary.
The commentators, Professors Michael Asimow and Neysun Mahboubi ,provided further insight into Professor He’s work. They questioned whether we could look at the situation from a glass-half-full perspective since most plaintiffs get something out of their withdrawal application in a quid pro quo fashion. Perhaps suing plaintiffs are actually getting what they deserve because there is judicial mediation versus none at all. Professor He challenged this assumption by citing that most plaintiffs actually do not get something out of a “settlement” except in some egregious cases. The results depend on the balance of power between the plaintiff and the agency directive. A follow-up question asked whether there are subcategories of cases where Professor He saw a higher rate of withdrawals. This was not the Professor’s focus in the paper, but he thinks that higher rates of withdrawal happen in group cases that relate to urban development where there are high-pressure directives to courts at all levels to do everything possible to resolve cases quickly. Another category contains sensitive cases where the harm is substantial or has wide public interest.
On a more hopeful note, since the publication of Professor He’s work and other complaints about the legitimacy of the system, there has been some response from high courts to encourage courts to uphold the law. Further, there have been some revisions of the Administrative Litigation Law statutes themselves, the attainment of which was as hard as promulgating the original laws themselves. However, Professor He does not think that major change will take place without top-down political support, but also does not expect the courts themselves to ruffle any feathers. Right now, the judges do not even have authority to really declare what the law is.
The Role of the National People’s Congress Standing Committee in Administrative Oversight
The second half of this portion of the symposium featured Professor Lin Yan who provided us an overview of the role of the National People’s Congress Standing Committee in overseeing lower government entities’ implementation of Chinese law. The Standing Committee carries out this function through its law enforcement and inspection powers. What is troublesome is that neither power is expressly given to the Standing Committee through the Constitution except through the constitutional mandate for the Standing Committee to “supervise the work of the State Council”.
This is a disconcerting fact since the traditional role of the Standing Committee was always to carry out the duty to write legislation. The Standing Committee took on its new role in law enforcement when lower government divisions’ law enforcement fell far short of expectations. Through two decades of buffing up infrastructure to better “supervise” law enforcement at the lower levels, the new enforcement role of the Standing Committee has been institutionalized in the Chinese legal system.
Professor Lin then reminded us that to understand the influence that the Standing Committee has on the development of Chinese administrative law, we have to understand its function in “overseeing” law enforcement. We must not equate the Standing Committee’s legal supervisory role to the role of administrative judicial review in the US. Professor Lin used a very illuminating analogy to describe the difference. If the legal system is a city, the courts play the role of traffic police that make sure each car obeys the traffic lights. They adjudicate each case according to the legal rules given to them. The Standing Committee, on the other hand, plays the role of a urban transportation planner who makes policy decisions as to which traffic laws are priorities and what rules to enforce and how. The Standing Committee carries out its role through performing six major functions: (1) ensuring compliance with a specific legislative mandate, (2) affecting priority-setting in statutory enforcement (the Standing Committee sets priorities for the nation law enforcement entities to focus on for each year), (3) supporting budget increases for law implementation work, (4) building more effective statutory enforcement such as creating new agencies, (5) pressing the State Council to adopt supplementary regulations, and (6) revising old laws or adopting new laws.
At the end of Professor Lin’s remarks, commentators Professor Nina Mendelson from the University of Michigan Law School and Professor Jacques deLisle raised some questions and observations that offered some comparative insight into the role of the Standing Committee and the US administrative law oversight system and some lingering questions of “so what”? Professor Mendelson observed that (1) there has been an increase in power in the government bodies in charge of Chinese law implementation and implementation has become more and more systematized. (2) The role of the Standing Committee takes a comprehensive review of accountability on the lower state ministers that examine lower agency actions and inactions. (3) The Standing Committee oversight parallels the US Congressional oversight and has their common problems with one important caveat which is that the US oversight is public and much less planned and systematic.
Professor Mendelson also asked two follow-up questions: (1) to what extent do the Standing Committee’s oversight initiatives actually have “teeth” since there’s no control over lower government entities’ budgets, and to what extent will inspection reports be made public so that the public sentiment can help with the Standing Committee’s legitimacy?; and (2) How does the Standing Committee actually set priorities?
Professor deLisle followed up with some further insight into Professor Lin’s research. The functions and operations of the Standing Committee in the area of administrative oversight are quite reflective of the Chinese government that we know. The role of the Standing Committee is an unsurprising result of: (1) a weak and limited judiciary, (2) omnipresence of the Chinese Communist Party, (3) extensive power and discretion of the State Council, and (4) the political vulnerability of the local governments that results from lack of formal autonomy and authority.
Professor deLisle also suggested that Professor Lin’s paper adds to our understanding of China’s “informal constitutionalism,” where formal constitutional structures like the Standing Committee acquire informal roles that supplement or surpass the often weakly implemented functions that have clearer constitutional foundations. Professor deLisle also left us to think about whether the NPC Standing Committee’s oversight function might be in some sense democratic. Perhaps probing oversight from the Standing Committee (a legislative body) over administrative actions gains legitimacy in part from the constitutional principle that they are organs of popular sovereignty and the product of formally, although not practically, democratic elections. Growing opportunities for public commentary on the legislation that the NPC Standing Committee oversight process targets at the implementation stage, and a growing focus in such oversight work on areas of popular discontent with poor law implementation may include a democratic element and a basis for public accountability that is often lacking in China’s administrative bodies and courts.
The discussions were thought-provoking and educational but it left me wondering about one more question. What, if any, are the roles that these accomplished academics play in affecting legal change in China? An overarching theme that was presented was that Chinese administrative law enforcement is carried out in a top-down approach with little public input from those who are most affected. Both of the papers were insightful regarding the status quo but offered very few suggestions as to exactly how to change the system. We are left to wonder: when do private citizens outside the Party’s inner circle get a real voice in reforming the legal structures under which they live? Commentary from the US scholars also highlight that asking how close the Chinese system is to the US system is useful, but does not provide the whole story. Normative judgments as to whether a phenomenon is good or bad depends on understanding what else is available and possible under China’s existing laws. Progress will be slow but we are excited and encouraged when there are scholars such as Professor He and Professor Lin who will “devote their lives” to push for the rule of law through their work.