Duality or Complementarity？The Political and Legal Orientations of the Chinese Petitioning Mandate

Cong-rui Qiao

On 14 September 2016, the Chinese State Bureau for Complaint Letters and Visits (“Bureau”) in Beijing saw 24 lawyers providing legal advice for the petitioners. This was the first experiment of the joint-program between the Ministry of Justice and the Bureau, which aims to resolve litigation-related petitions. With much attention given to the ongoing reforms, this blog offers a brief analysis on the major characteristics and challenges of the Chinese petitioning system.

The petitioning mandate in China is seen to shift from a politically sensitive system to a procedure-based one in the past decade. The Chinese Government established a guiding principle called ‘separating litigations from petitions’ in 2004, as the overlap between the executive and judicial mechanisms for tackling people’s complaints eroded effectiveness on both sides.

The letter-and-visit mechanism, officially called “Dealing with People’s Letters and Receiving People’s Visits”, was available as early as the 1940s in China. It was initially political in adherence to the revolutionary tenet of Mass Line (Qunzhong Luxian/群众路线), which underpinned the people’s role in handling public affairs and deciding individual and collective complaints.

The institutionalization of Mass Line was a turbulent process during the Great Proletarian Cultural Revolution (1966 to 1976), as it lacked procedural constraints and sufficient checks and balances. Due to the Cultural Revolution’s destructive impact on the effective functioning of most state institutions, the Chinese Government began standardizing its performance and speeding up its legislative measures. Within the executive branch, the Chinese State Council promulgated the ‘Regulation on Complaint Letters and Visits’ (“Regulation”) in 1995, which was binding on the executive organs and personnel and set out the process for petitions against executive actions.

According to the Regulation, the bureaus for dealing with people’s complaints were founded at the central, provincial, municipal, and town levels. Any citizen, legal person, and organization can file complaints, report facts and submit opinions concerning the executive or executive-administrated organisations and their functionaries to corresponding bureaus by letter, email, telephone and visit ( Article 1 and 2).

The scope of this executive-led complaint mandate is broad. It can receive and review petitions concerning executive organs and their staff (such as civil servants and officials); public institutions established by special laws (such as the firefighters); public service institutions (such as utility suppliers); quasi-government agencies (such as social welfare providers); social associations (such as labour unions); and villagers’ committees and urban residents’ committees (Article 14).

While the scope is broad, the implementation of the mandate is limited. Its principal function is to facilitate communication between concerned parties by accepting and transferring petitioners’ complaints, designating and coordinating responsible government organs to consider the complaints, and supervising the consideration process. This means that under the mandate, awards or remedies cannot be granted to the petitioners. Furthermore, it cannot impose sanctions if a requested party reacts irresponsibly or inactively.

When it comes to collective petitions, the letter-and-visit mandate is even more restricted. Complaints and grievances presented in collective petitions often reveal flaws or unlawfulness relating to larger bureaucracies in which responsibility and accountability are diffused. Collective petitions easily end up in numerous transfers from one office to another due to non-response or non-compliance from concerned parties – colloquially known as the ‘government kicking the football’.

Despite these limitations, people who challenge public actors still tend to prefer the letter-and-visit mechanism to judicial ones. For example, a survey conducted in the Xi’an municipal region found that 54.5 per cent of respondents believe that it is easier and more viable to file a complaint with the letter-and-visit bureaus than any other alternative (Table 21 on page 37).

As the Chinese government and its agents are deemed too powerful to challenge, the practice of suing a public office or its staff is seen as no more than ‘hitting a stone with the egg’. An empirical study of Chinese legal practitioners showed that lawyers specialized in administrative cases normally first persuade their clients to reconcile with – rather than litigate against – Government agencies, which they regard as more practical and effective to reach a solution.

Given this popular view, it is unsurprising that the amount of collective petitions has been massive in the 2000s. In 2001 alone, the State Bureau received more than 1,000 collective petitions, which increased by 33 per cent as compared to 2000. In the southern province of Guangdong, the provincial bureau accepted 1,641 collective petitions concerning claims from 45,336 persons in 2003, and in the eastern province of Zhejiang, around one third of all the accepted petitions involved over 50 complainants in 2004. Finally, in the middle province of Hubei, up to 70 per cent of the admissible petitions before the provincial bureau were collective petitions in 2004.

As is empirically shown, petitioners who have access to alternative resolution measures offered by community or profession-based organizations tend to be less contentious and violent than those who have not. Therefore, the Government encouraged social associations to play a role in redressing collective complaints, such as associations of the retired civil servants, labor unions, women’s federations, and lawyers’ associations. A number of Government policies have been promulgated to support social associations participating in addressing collective petitions.

The municipal government of Wuhan, for example, provides an office, an assistant, and a car for Mr. Wu Tianxiang, who started working as a pro bono inspector after his retirement in 2008. Wu is the former deputy director of the Wuhan municipal bureau for complaint letters-and-visits, and has considerable experience in communicating with petitioners and coordinating their interaction with public actors. In January 2011, dozens of petitioners brought a complaint to Wu, which alleged a government-affiliated construction project had demolished their houses in a violent way. After a field investigation, Wu found out that the photo evidence presented by the petitioners had been edited and would be considered invalid by the letter-and-visit staff. Having learned that the petitioners were unable to present alternative evidence, Wu helped the petitioners enter a direct dialogue with the project director, and presided over the dialogue to ensure a free exchange of opinions.[1]

The retired inspector Wu is special as he enjoys much respect from the community. More importantly, he was nominated as a “national moral model” in 2009 and received intense media attention. However, Wu is somewhat of an exception as not every non-official actor has the authority to substantively coordinate petitioners’ complaints. In contrast, in another municipal region of Nanjing, “there is little buy-in by the government personnel and public agents as they are aware of the low cost of noncompliance.”

Another drawback is that the fairness and transparency of the letter-and-visit bureaus is sometimes questioned. It is an unstated principle within the letter-and-visit system that ‘no bad or good news shall go public’. This is because “bad news indicates the weakness of our bureau to solve people’s problems, in the meanwhile we fear that the ‘good outcome’ of a given petition will arouse unrealistically high expectations of future petitioners.” [2]

The stance of the judiciary is not to overlap with the executive-led mandate. This is because the courts at varying levels do not always have sufficient capacity to intervene in the review and rectification process within the executive. As such, the courts do not accept administrative complaints against the letter-and-visit bureaus. The People’s Supreme Court promulgated a judicial interpretation on 12 December 2005, which excluded complaints about the performance of letter-and-visit bureaus from the scope of its administrative litigation, as the letter-and-visit mandate “does not exert any substantive effect on the rights or obligations of the parties.”

To conclude, the Chinese letter-and-visit mandate has shifted from a politically sensitive system to a procedure-based one since the 1990s. Despite this shift at the policy level, it is unclear whether the reform is well received by petitioners. After all, the settlement of complaints is an interaction between the formal State institutions and the public. The perception of the institutional ‘users’ matters as well – the phenomenon where people file their complaints with multiple mechanisms can be altered only when they are convinced of the difference between redress mandates and then choose the most proper one for seeking the best outcome. In order to understand substantial effects of the Chinese shifting petitioning system, further empirical research on popular reception in China will be needed to complement the institution-centred analysis.