V. Development of Rule of Law and the Institutions of Democratic Governance

V(e) ACCESS TO JUSTICE

Citizen Reliance on Petitioning | 2005 Amendments to Xinfang Regulations

FINDINGS

• Chinese citizens resort to thousands of "letters and visits" (xinfang) offices for redress of their grievances because of deficiencies in the legal system and the absence of alternative channels for political participation.
• More citizens are petitioning xinfang offices, although only a small fraction of grievances are resolved. Citizen frustration is finding an outlet in collective petitions that take the form of mass demonstrations or strikes. Because Chinese authorities punish local officials more severely for large protests, citizens think that collective petitioning is more likely to gain results.
• The Chinese government passed new regulations in 2005 designed to make the xinfang system more responsive to citizen complaints, but these regulations also expand the role of xinfang offices and the incentives for citizens to resort to collective petitioning.

Citizen Reliance on Petitioning

Since the 1950s, "letters and visits" (xinfang) offices have been a channel for citizen requests for assistance in resolving grievances and appeals of government decisions outside the judicial system.¹Xinfang offices are found throughout the Chinese bureaucracy, including offices of the Communist Party, police, government, procuracy, courts, and people's congresses. Xinfang offices help central leaders administer the country, serving as a channel for them to obtain information on grassroots conditions and allowing them to use public input to monitor the actions of lower-level officials.² Individual petitioning may be as simple as one dissatisfied individual visiting multiple government xinfang offices.³ Collective petitioning may involve organized demonstrations, speeches, and marches of hundreds or thousands of people seeking to present their grievances to officials.⁴

Citizen petitioning of xinfang offices reflects a number of structural problems in the Chinese political and legal systems. Particularly in rural China, a single Party secretary often holds virtually unchallenged political power. Ordinary citizens have no ability under current law to organize independent organizations to protect their rights,⁵ and have only limited means to participate in the selection of local officials.⁶ Moreover, judicial institutions are subject to extensive local Party and government interference and provide limited protection for citizen rights.⁷ Without effective political or legal channels of redress, citizens often have little choice but to petition higher authorities repeatedly to seek help in resolving their grievances.

Despite the gradual development of the formal Chinese legal system, Chinese citizens continue to rely heavily on petitioning to resolve their grievances. According to estimates by national xinfang officials, petitions to Party and government xinfang bureaus at the county level and higher total about 11.5 million per year.⁸ In contrast, the entire Chinese judiciary handled 6 million legal cases in 2004, of which only 91,192 were administrative cases.⁹ Even within formal legal institutions, citizens commonly resort to petitioning to resolve their grievances; petitioners presented 4.2 million xinfang petitions to Chinese courts in 2004.¹⁰

Petitioning practices and institutions challenge the development of the rule of law in China. Petitioners often contact any official or bureau that they think may be able to intervene and assist them, regardless of whether or not the official or bureau has formal authority over the issue. Similarly, official resolution of petitions often depends on the willingness of high officials to intervene rather than on the legal merits of the case.¹¹ Many petitions are appeals of court decisions outside of formal legal channels.¹² As one Chinese observer has noted, "Xinfang—a mechanism originally established to resolve political problems, has gradually evolved into a system of assistance serving as a replacement for the judicial system."¹³ Despite heavy citizen reliance on xinfang offices, individual petitioning rarely resolves underlying grievances. According to a 2004 survey of the xinfang system conducted by the Chinese Academy of Social Sciences, government bureaus address only 0.2 percent of petitions filed. Over half of petitioners surveyed experienced beatings or other reprisals by government officials as a result of their petitioning.¹⁴Xinfang offices lack authority to resolve petitions, frequently refer petitioner cases from bureau to bureau without resolution, handle petitions under opaque and secretive procedures, and are the source of a wide range of human rights abuses.¹⁵ Lacking other channels for redress of grievances, petitioners sometimes spend years or decades living in poverty in Beijing slums as they pursue their petitions.¹⁶

Although individual petitioners rarely succeed under the xinfang system, collective petitioning efforts occasionally compel officials to act on citizen grievances.¹⁷ This result occurs in part because local officials who experience collective petitions face punishment under official xinfang responsibility systems.¹⁸ These systems apply progressively harsher disciplinary sanctions to government officials depending on the scale of the mass petitions and the bureaucratic level to which they are directed, rather than linking punishment solely to the legal merit of the complaints.¹⁹ For example, Anhui provincial regulations impose formal criticism on local officials who face mass petitions (over 50 petitioners at the provincial capital or over 20 at the national level) that remain for more than 48 hours at government agencies."²⁰ Mass petition movements of over 100 people to the provincial capital (or over 30 to Beijing) result in suspension of the responsible official.²¹

Xinfang responsibility systems create an incentive system that encourages petitioners to organize larger petition movements directed at increasingly higher levels of government. Because the systems apply harsher disciplinary sanctions to officials who experience larger and more frequent mass petitions, petitioners have an incentive to take their grievances to the streets to force officials to act. Local officials have an interest in suppressing collective petition movements and preventing petitioners from approaching higher authorities. Foreign NGOs have documented the efforts by local and national officials to suppress mass petition movements violently.²² This cat-and-mouse struggle between petitioners and local authorities appears to be producing a group of experienced petition leaders who are capable of operating in secrecy and mobilizing large groups of petitioners.²³

The incentive structure described above appears to be causing a rapid increase in the number of citizen petitions. Officials at the national xinfang bureau report that the total number of petitions has increased every year since 1993.²⁴ Petitions to the Supreme People's Court increased by 23.6 percent in 2004.²⁵ Petitioners are focusing on higher levels of government. In 2003, the national xinfang bureau registered a 14 percent increase over 2002 in the total number of petitions, but provincial and local bureaus only registered minimal increases. Similarly, national-level government agencies received 46 percent more petitions in 2003 than in 2002, while provincial and local agencies had only minor increases.²⁶ Collective petitions are increasing as a percentage of total petitioning activity. While the total numbers of letters and in-person visits by individual petitioners in one surveyed set of villages remained relatively stable between 1995 and 2000,²⁷ the numbers of collective petitions nearly tripled during the same period.²⁸

2005 Amendments to Xinfang Regulations

In January 2005, the State Council responded to criticism of the xinfang system by amending the national xinfang regulations.²⁹ The amended regulations clarify that officials must resolve petitions in accordance with laws and regulations.³⁰ Petitioners must raise violations of their legal rights with the courts or other legally mandated entities.³¹ The amendments remove language suggesting that the xinfang system can be an alternative to legal remedies provided in the Administrative Litigation and Administrative Reconsideration Laws. The amendments strengthen the finality of decisions and permit hearings to be held to resolve petitions.³² The amended regulations also encourage local officials to allow legal aid groups to assist in resolving petitions under the guidance of xinfang bureaus.³³

Despite the positive aspects of the 2005 amendments, however, they also reinforce the xinfang institutions and responsibility systems that are at the root of existing problems. The national xinfang bureau is charged with creating a nationwide system to track petitions.³⁴ All local governments must now adopt xinfang responsibility systems and make the success of officials in handling petitions an element of official performance reviews.³⁵ The new regulations also require that all county and township governments and their subordinate administrative bureaus establish a system of "xinfang leadership reception days" for petitioners to approach responsible officials of various government bureaus directly.³⁶ Finally, the regulations grant xinfang officials a degree of "soft power" to affect the disposition of particular cases³⁷ and require regular reporting of petition statistics to higher government authorities.³⁸

Notes to Section V(e)—Access to Justice

1 For more comprehensive treatment of the xinfang system, see Laura Luehrmann, "Facing Citizen Complaints in China 1951–1996," 43 Asian Survey, 845, 847 (2003); Carl Minzner, "Xinfang: An Alternative to the Formal Chinese Legal System," 42 Stanford Journal of International Law (forthcoming publication 2006); Wang Bixue, "114,000 Lawyers, But Distributed Unevenly, 206 Counties Have Not a Single Lawyer" [11.4 Wan lüshi dan fenbu bu junheng woguo 206 xian wu lüshi], People's Daily (Online), 8 June 05.

2 Yasheng Huang, "Administrative Monitoring in China," 143 China Quarterly 828, 848 (1995); Kevin O'Brien, "Neither Transgressive Nor Contained: Boundary-Spanning Contention in China," 8 Mobilization: An International Journal 51, 60 (2003).

3 For an example of petitioning activity, see "Retired Hangzhou Teacher Wears White Coat, Promotes the Constitution, and Is Detained 10 Days" [Hangzhou tuiyi jiaoshi shenchuan baidapao xuanchuan xianfa bei juliu 10 tian], Boxun (Online), 25 January 04.

4 Kevin J. O'Brien and Lianjiang Li, "The Politics of Lodging Complaints in Rural China," 143 China Quarterly 756, 758 (1995).

5 See Section V(a)—The Development of Civil Society.

6 See Section V(d)—Democratic Governance and Legislative Reform.

7 See Section V(c)—China's Judicial System; CECC, 2004 Annual Report, 81.

8 "National Xinfang Bureau Chief: 80 Percent of Petitioners Are Correct" [Guojia xinfang juzhang: 80% de shangfang you daoli], Bimonthly Discussion, reprinted in China.org.cn (Online), 20 November 03.

9 "Petitions" here is used as a shorthand for all xinfang items, both letters and visits. Chinese statistics on court cases vary depending on what is counted as a "case." The 2005 Supreme People's Court Work Report lists the Chinese court system as handling 7,873,745 total cases, including roughly two million "executed" (zhixing) cases. 2005 Supreme People's Court Work Report, 9 March 05. In contrast, the 2004 SPC Work Report lists only 5,687,905 cases, apparently excluding the two million executed cases. 2004 SPC Work Report, 10 March 04. The text uses the six million figure to keep consistency with the Commission's prior annual report, as well as with the SPC's own prior statistics.

10 2005 SPC Work Report, 9 March 05.

11 See Carl Minzner, "Xinfang: An Alternative to the Formal Legal System." For information on the interplay of citizen petitioning efforts with the administrative legal structure, see generally Kevin O'Brien, "Suing the Administrative State: Administrative Litigation in Rural China," 51 China Journal 76 (2004).

12 According to one Chinese academic survey of 632 petitioners in Beijing, approximately two-thirds, or 401 had previously attempted to file suit in local courts. 42.9 percent of these were rejected and 54.9 percent indicated that they disagreed with the legal decision of the court. Zhao Ling, "China's First Report on Xinfang Work Receives High-Level Attention" [Guonei shoufen xinfang baogao huo gaoceng zhongshi], Southern Weekend (Online), 4 November 04.

13 Lang Pingping, "Reform of the Xinfang System Must Be Coordinated With Judicial Reform"[Xinfang zhidu de gaige bixu gen sifa zhidu de gaige xiang xietiao], China Youth Daily (Online), 30 November 04. As scholars have noted, under 2 percent of rural Chinese grievances "involve a lawyer, a court, or any office of the judicial system." CECC, 2004 Annual Report, 72 (citing Ethan Michelson, "Causes and Consequences of Grievances in Rural China," (draft manuscript on file with the Commission)). U.S. studies have found that approximately 10 percent of American grievances involve lawyers. Survey data suggest that 10 percent of Beijing "disputes" end up in court. Ibid.

14 Zhao Ling, "China's First Report on Xinfang Work Receives High-Level Attention"; Li Hui, "The Dispute Regarding Yu Jianrong's Proposal For the Elimination of Xinfang Bureaus: Does It Assist Xinfang Reform?" [Yu Jianrong xinfang ban chexiao shifou you li xinfang zhidu gaigeyin zhengyi], People of the Times Weekly, reprinted in Sina.com (Online), 17 November 04.

15 Zhao Ling, "China's First Report on Xinfang Work Receives High-Level Attention."

16 Hannah Beech, "Nothing Left to Lose," Time Asia (Online), 23 February 04; Carl Minzner, "Xinfang: An Alternative to the Formal Legal System."

17 For more comprehensive discussion, see Carl Minzner, "Xinfang: An Alternative to the Formal Legal System."

18 These systems also punish officials for a wide range of administrative behavior, including falsification of xinfang reports to higher officials, failure to execute directives, or abuse of petitioners. See, e.g., Qingdao Notice on Implementing Leadership Responsibility System in Xinfang Work [Guanyu shixing xinfang gongzuo lingdao zeren zhuijiu zhi de jueding], issued May 19,2003, art. 8(5, 6).

19 For a more comprehensive discussion, see Carl Minzner, "Xinfang: An Alternative to the Formal Legal System."

20 Anhui Provincial Party Office and Provincial Government Notice Regarding the Implementation Details of the Xinfang Responsibility System for Leaders [Zhonggong anhui sheng bangongting, anhui sheng renmin zhengfu bangongting guanyu yinfa Anhui sheng xinfang gongzuo lingdao zeren zhuijiu zhi shishi xize de tongzhi], issued September 2, 2003, art. 4(3).

21 Ibid., art. 6(2).

22 Sara Davis, "China's Angry Petitioners," Asian Wall Street Journal (Online), 25 August 05; Massive Crackdown on Petitioners in Beijing, Human Rights in China (Online), 8 September 04; CECC, 2004 Annual Report, 75.

23 Thomas Bernstein, Center for the Study of Democracy, Unrest in Rural China: A 2003 Assessment (2004), 11–2 (noting one example of a countywide petitioning organization with leadership skilled in covert operational tactics); Access to Justice, Staff Roundtable of the Congressional-Executive Commission on China, 12 July 04, Written Statement submitted by Professor Kevin O'Brien, Professor at the University of California, Berkeley.

24 "National Xinfang Bureau Chief: 80 Percent of Petitioners Are Correct," Bimonthly Discussion.

25 2005 SPC Work Report, 9 March 05. In contrast, previous SPC Work Reports indicate that the number of formal appeals handled by the SPC appears to have decreased, from 3,567 in 2003 to 2923 in 2004. Ibid; 2004 SPC Work Report.

26 Zhao Ling, "China's First Report on Xinfang Work Receives High-Level Attention."

27 Xiao Tangbiao, "The Situation of Political Stability in 20 Mainland Villages—A Look at Peasant Movements" [Ershi yu lai dalu nongcun de zhengzhi wending zhuangkuang—yi nongmin xingdong de bianhua wei shijiao], 21st Century, 51–60 (2003).

28 Zhao Ling, "China's First Report on Xinfang Work Receives High-level Attention." Mass petitions to county level and higher Party and government organs increased by a multiple of 2.8 and 2.6 respectively from 1995–2000, with a further 7.2 and 11.7 percent increase from 2000 to 2001. Xiao Tangbiao, "The Situation of Political Stability in 20 Mainland Villages—A Look at Peasant Movements." Provincial authorities have noted steep increases in petitioning activity as well. Henan provincial xinfang authorities noted a 28.3 percent increase in xinfang cases in 2004 over 2003, and a 35 percent increase in the number of collective petitioners traveling to Beijing. Liu Binglu, "3,000 PSB Heads 'Seize' Pending Petitions" [San qian gong'an buzhang 'jina' xinfang chen'an], Beijing News (Online), 25 May 05.

29 Chinese government authorities rejected divergent calls to either strengthen or weaken xinfang institutions, choosing instead to follow a "third path" of attempting to regularize the system. Zhao Ling, "Amendments to Xinfang Regulations Seek to Take a 'Third Path' " [Xinfang tiaoli xiugai yu zou "di san tiao lu"], Southern Weekend (Online), 13 January 05.

30Xinfang Regulations [Xinfang Tiaoli], issued 17 January 05 [hereinafter 2005 Xinfang Regulations], art. 32.

31 Ibid., art. 14.

32 Ibid., arts. 31, 34–5. The amended 2005 regulations eliminate reference to the (now abolished) administrative system of custody and repatriation as a punitive measure for petitioner infractions. Compare ibid., art. 47, with Xinfang Regulations [Xinfang Tiaoli], issued October 28,1995 [hereinafter 1995 Xinfang Regulations], art. 22.

33 2005 Xinfang Regulations, art. 13.

34 Ibid., arts. 11–2.

35 The 1995 regulations merely required governments at the county level and higher to either establish xinfang bureaus (jigou) or designate personnel to handle xinfang issues. 1995 Xinfang Regulations, art. 6. In contrast, the 2005 regulations mandate the establishment of formal xinfang bureaus for county level and higher governments. Additionally, the amended regulations require that township governments either establish formal xinfang bureaus or designate personnel to handle xinfang issues. 2005 Xinfang Regulations, art. 6. While xinfang responsibility systems are commonly used in various levels of Chinese government, the 2005 national amendments mark the first time they have been formally included in any of the comprehensive provincial or national xinfang regulations. The 2005 regulations also charge xinfang bureaus with reporting (along with other statistics) the rate at which various bureaus adopt the proposals submitted by xinfang bureaus for corrective action and policy, this also likely represents an effort to add more teeth to the oversight function of xinfang bureaus. Ibid., art. 39 (2), (3).

36 Ibid., art. 10.

37 In contrast with prior regulations, the 2005 regulations charge government xinfang bureaus with the responsibility for raising proposals of corrective action, policy changes, and administrative punishments with the appropriate bureaus. Ibid., art. 36–8.

38 Ibid., art. 39.