A rising number of social conflicts, particularly involving land rights issues, and an increasing public awareness of legal rights have, in recent years, strained China's judicial system.
At the same time, shortage of judges, a growing backlog of cases — not unlike the situation in India — and the government's continuing influence over the courts have, lawyers and scholars say, eroded public confidence in the judiciary.
To stem the rising tide of discontent, China's lawmakers on Saturday passed a first-of-its-kind law to set up “mediation committees” to handle social conflicts and administer speedy justice at the grassroots before cases go to trial — and, more often than not, get mired in delays — in local courts.
The committees will focus on conflicts relating to livelihood, and issues that “undermine social stability”, are “sensitive” and “receive extensive public attention”.
Every year, China faces at least 100,000 “mass incidents”, scholars say, usually involving land rights issues or labour unrest. The Supreme People's Court last month called for a shift in emphasis from trials to mediation to address this unrest, given the judicial system's seeming limitations at effectively handling social conflicts. “Our country is currently in a time of many social conflicts. The task to maintain social harmony and stability is tremendous and onerous,” the court said in an unusually blunt note.
“Mediation should be the first line of defence to maintain social stability and promote harmony,” Minister of Justice Wu Aiying told the National People's Congress Standing Committee, China's top legislative body, while presenting the draft law.
The practice of local-level mediation has been in place in China since 1982, after being suspended during the Cultural Revolution (1966-76) launched by Mao Zedong. According to the government, the country has 4.9 million mediators who last year handled 7.67 million disputes. The law will regularise the process.
The current petition system, which allows litigants to seek redress from higher courts, has been widely criticised by legal scholars, with repeated petitions often left unheard by the authorities.
Legal experts are, however, divided on whether the mediation law will provide the solutions.
Zhao Ling, the deputy presiding judge of the Chongqing People's Court, which has seen the number of trials double in recent years, welcomed the law as a practical way to dissolve social conflicts. “Trials may lead to appeals and repeated petitions,” she told the official China Daily newspaper. “However, mediation is the most direct, effective, simple and time-saving way to achieve the goal.”
Others, however, have raised questions on whether the law will weaken the evolving judicial system by discouraging litigation.
While the court system is, in general, under the control of the Communist Party, courts at the local level have been given increasing independence in recent years in tackling issues relating to land and other sensitive issues. The new law only says local committees must chose members who are “honest, fair and keen on helping others to solve problems”. It does not specify how members will be selected, or how the committee will be ensured independence from state influence.
Another concern is the lack of a mechanism to ensure enforcement of mediated outcomes. The Beijing Youth Daily reported recently that in the city, local courts were increasingly pushing for mediated settlements. However, the rate of voluntary execution was far less than for litigated settlements.
Human rights groups have also expressed concern over the independence of the mediation process. “Mediation can certainly be a useful alternative in dispute resolution, but only in situation where the parties are not pressured to mediate or to come to a settlement and where, if they wish, can return to the ordinary litigation process where their procedural rights are protected,” argues David Smalls, a researcher with the China Human Rights Defenders. “At the same time, the government is deterring citizens from resorting to litigation, which are already conducted in flawed ways by courts that lack independence.” Doing so, he said, would “chip away at the very basis of an already weak legal system.”
