Out of Order

The police say her son was busy cutting a taxi driver’s throat on the night of Aug. 16, 1994, but Yang Shuxia says she knows better. “He was right here lying down next to me with the tube running into his arm,” she says, pointing to the kang, a traditional brick sleeping platform found in most farmers’ homes in this part of northeastern China. Yang and other family members insist that then 21-year-old Zhu Yanqiang couldn’t even get to the toilet without help, much less sneak out to join in the brutal robbery-murder that took place some 40 km from the family’s two-room farmhouse in the windswept hills outside the town of Chengde. Zhu, who sold vegetables in a nearby market, had gotten into a fight the previous day with other vendors while jostling for a prime spot; he was beaten repeatedly with an iron bar. “He was badly injured and the doctor gave him medicines and told him to rest,” Yang says. “We have the prescriptions to prove it all, but the judge refused to listen.”

Zhu and three friends from his village of Zhuangtouying were convicted in 1995 of murdering a taxi driver—convictions obtained in large part on the basis of their confessions, which all four men later said they were tortured into fabricating. Citing numerous problems with the trial—one higher court found no fewer than 28 inconsistencies in the original court’s conduct—the case was appealed all the way to the Supreme People’s Court in Beijing, which recommended a retrial, as did several lower courts. In all, the case has been retried five times. Yet all four men remain in jail 13 years later. “Even for China, this is an unusual case,” says law professor Xu Zhiyong, a legal adviser to the defendants’ families, “because it is so clear that these men are innocent.”

Like almost everything else in the country, China’s legal system is in transition, buffeted by social changes sweeping the nation as it races toward economic modernity. There are many other areas of grave concern for Beijing: a ravaged environment, an inadequate health-care system, pervasive corruption and a widening chasm between the urban rich and rural poor, to name a few. But none is so visible a symbol of the dilemmas Beijing faces in coping with rapid change while at the same time preserving the country’s tenuous social order—and the Communist Party’s grasp on political power—as the judicial and legal system.

As the case of the Zhuangtouying four demonstrates, it is a system in near paralysis, where even cases that its own judges have acknowledged are profoundly flawed can go unresolved. China’s legal institutions share many names and structures with those of Europe and the U.S.: four tiers of courts from the county level to the Supreme People’s Court, a prosecution service (the People’s Procuratorates), an appeals process, trials, judges and lawyers. But the institutions that make up China’s legal system are all ultimately under the control of the Communist Party. The Party isn’t solely to blame for China’s woes: rogue local officials, badly paid, poorly trained judges and the courts’ own institutional weakness all play a role. But the Party’s near absolute power over the judiciary ensures a lack of accountability that is the root cause of many other ills.

It’s not hard to find examples of questionable legal outcomes like the case of the Zhuangtouying four. The plight of blind legal activist Chen Guangcheng, who was given a four-year sentence on charges of inciting public disorder last year after he exposed the forced sterilization of women as part of a provincial family-planning campaign, is one example regularly cited by activists. New York-based Human Rights Watch and others say they have recorded numerous instances of individuals who protested court decisions being beaten, tortured, imprisoned and even killed as local officials sought to bury controversial or embarrassing cases.

Xu, the academic who is advising the prisoners’ families, says that the treatment received by Zhu and his co-defendants was typical. “The same judges are not supposed to try the same case twice, but in this case they tried the case three times,” he says. Xu says there were many other errors. According to documents lodged by the Chengde People’s Procurate, the government alleged four men flagged down a taxi at the Chengde railway station on the night of the murder. After one asked the driver to stop so that he could relieve himself, all four attacked him with knives, stole about $50, a pager and some keys, and buried the body in a nearby field. With no witnesses to the crime, the prosecution’s case relied on the confessions and two pieces of evidence: a knife found in one defendant’s home that had blood of the same type as the driver and a cigarette butt found in the taxi with another’s DNA. But the knife and the cigarette butt were never produced in court, says Xu. And as for the confessions, “We have witnesses who saw them being tortured. And because [the confessions] were made up, they didn’t even agree with the facts of the case at the crime scene and had to be changed later.” (Court and police officials involved with the case declined to comment for this story.)

Chinese have long had to accept that the courts offered little recourse from flawed decisions. But economic development is bringing pressure for change. The country’s emerging urban élite now see protecting their individual rights as a No. 1 priority. “The rising middle class likes predictability and security, and that’s what the law does,” says Nicholas Bequelin of Human Rights Watch, adding that the Communist Party recognizes that its future hangs on being able to accommodate such demands. “The Party is highly adaptable so long as nothing threatens their basic control.”

Like any bureaucracy, Chinese authorities have preferred to leave things the way they are as long as they could. But inaction is no longer an option. By Beijing’s own accounting, the country is wracked by more than 70,000 “public-order incidents” each year. What defines an incident is kept vague, but activists and scholars agree that they constitute serious breaches of public order, and are often sparked by disputes over issues such as property rights or local government decisions that in other societies would be resolved through the legal system. Yet officials are also aware that any expansion of individual rights—a change for which activists and legal experts have clamored—will come at the expense of the Party’s hegemony. Some progress is being made: lawyers have recently won credible victories on cases involving environmental protection, labor rights and antidiscrimination. The government has also attempted to professionalize the legal system by bringing in overseas lawyers and judges to help train their Chinese counterparts. But even those incremental gains are met with deep suspicion, resulting in what Bequelin calls the “fundamental inner contradiction” of the law’s role in Chinese society. “On the one hand the Party insists China is subject to the rule of law,” he says, “but at the same time they insist on the primacy of the Party in all areas, including the law.”

There is an ancient ambivalence in China toward the very idea of the legal system as a protector of individual rights. As George Washington University legal scholar Donald Clarke points out, for millennia the main role of China’s courts was to remind citizens of the power of the state. In an essay on China’s legal system, he cites a passage written by the 17th century Qing Emperor Kangxi: “If people were not afraid of the tribunals, and if they felt confident of always finding in them ready and perfect justice, lawsuits would tend to increase to a frightful amount,” the passage reads. “Those who have recourse to the tribunals should be treated without any pity, and in such a manner that they shall be disgusted with law, and tremble to appear before a magistrate.”

The four families of Zhuangtouying have spent 13 years dealing with the modern-day descendants of Kangxi and his mandarins. Like millions of Chinese for whom the legal system has provided little satisfaction, they have sought redress through petitions in Beijing, exercising an ancient right to bypass the courts and appeal directly to the central government. Official statistics are unreliable, but legal scholars say that out of the nearly 12 million petitions filed in 2006, only a few thousand will succeed. Out of those, petitioners able to translate Beijing’s decrees into corrective action by local officials likely number in the hundreds.

Still, several times a month, women like Yang and Wang Xiuqin, whose son Chen Guoqing is also imprisoned for the taxi murder, visit the main petition office in a run-down neighborhood near the Beijing South train station. Yang says she has no choice. “Of course we still come. Our children are innocent. How could we not come?” In December 2005, fed up with the lack of response, four relatives bypassed the petition office and marched straight to the red gates of Zhongnanhai, the Communist Party headquarters. Fu Yuru, mother of He Guoqiang, who is serving a suspended death sentence for the crime, held aloft a banner calling for her son’s freedom. The gesture cost the then 56-year-old 14 days in detention before she, like the others, was shipped back to Zhuangtouying with a warning to stick to established procedures in the future. “We had been to the Supreme Court and were not treated with patience,” explains Fu. “They said, ‘Go home and wait patiently because this is a complicated case.’ But we talked and agreed that we had to do something. We wasted 13 years. Did we want to waste another 13?”

For Yang Wanying, whose son Yang Shiliang is also serving a suspended death sentence, the injustice is a crisis of faith. A lifelong Communist Party member who still dresses in a baggy Mao suit and cap, he passionately denies his son is guilty. On the night of the murder, his son was “sitting right there,” Yang says, pointing to a window in the family home. “We played mah-jongg from seven o’clock until two in the morning.” He pauses for a moment, overcome by emotion, then continues. “Every time I visit him in the jail he asks me the same thing,” Yang says, without looking up. “‘When can I come home, father? When can I come home?’ I don’t believe there is justice in China anymore.”