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Judicial Reform with Chinese Characteristics

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Chief Justice Zhou in front of the National People’s Congress (photo courtesy to xinhuanet.com)

On January 18th, 2017, China’s Chief Justice was quoted saying, “We should resolutely resist erroneous influence from the West: ‘constitutional democracy,’ ‘separation of powers’ and ‘independence of the judiciary…We must make clear our stand and dare to show the sword.”

This comment confused and outraged the international community and many in China domestically, considering the country’s tortuous record of human rights. However, under the fury of the varying social commentary regarding Justice Zhou’s comments, is actually the interpretation of the concept “judicial independence” in different cultural contexts.

First, let’s get an idea of what you think is judicial independence.

 

 

 

Definition

(of An Independent Judiciary)

Preparation for the National People’s Congress (photo courtesy to yibada.com)

A general definition from Encyclopedia Britannica states judicial independence as “the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private.”

If we specify the specific criteria for an independent judiciary, Yale Professor Owen Hiss shrewdly summarizes its essence into three points:

      1. Party Detachment, “requires the judge to be independent from the parties in the litigation, not to be related to them or in any way under their control or influence.”
      2. Individual Autonomy, “collegial relationships or the [supervisory] power of one judge over another”
      3. Political Insularity, “requires that the judiciary be independent of political institutions and the public in general.”

 

 

Key Differences in Varying Cultural Contexts

Even though the three criteria outlined by Prof. Hiss are met by the American judiciary, the fundamental differences in the Chinese and American governments make it difficult for the former to adhere to the same standards latter is upheld to.

To clearly explicate the differences which make the establishment of an independent judiciary in China (according to the western definition) difficult, I will outline the key differentiating factors between the American and Chinese governments:

The United States vs. The People’s Republic of China

  • Multiparty system vs. consolidated Communist Party Rule
    • Unlike the competing political factions which follow different sets of policies and ideologies, China is ruled by one single political party — the Communist Party of China. The relationship between the government and the party is so deeply intertwined that when one references the party, it means the government, and vice versa.
    • This difference is demonstrated by the Coexistence of the Constitution of the People’s Republic of China and the Constitution of the Communist Party of China in the Chinese legal realm. When a party member (most government officials are party members) is subjected to questioning, their actions are subjected to the rules of the Party Constitution just as much as the country’s Constitution.
  • Purposes of the Judiciary
    • Among the many significant duties of an independent judiciary is the balance between party politics through resolving conflicts strictly in accordance law and the judicial branch’s evaluation — sometimes even through setting precedents for cases and legislation in the future.
    • However, in China, there is no need to balance the powers of different political parties, and because of the integration of the party system and the government in China, the judiciary strictly abides the rule of law created by the Communist Party.
      • According to the Congressional Executive Commission on China’s report, Judicial Independence in the PRC,
        • “While the Chinese Constitution provides that the courts are not subject to interference by administrative organs, social organizations, or individuals, judges are expected to adhere to the leadership of the Party and submit to the supervision of the people’s congresses and the procuratorate.”
      • This leads to a relative uniformity of the Chinese legislation, especially in comparison to the polarizing conservative and liberal opinions within the American society.

Why China Needs Judicial Reform

As Montesquieu said, “there is no liberty, if the judiciary power be not separated from the legislative and executive.” While it is unrealistic to completely extract the Chinese judicial branch from the legislative or executive branches, thus making it almost impossible for the Chinese judiciary to meet the “political insularity” criteria, the high rates of wrongful convictions and corruption especially in local levels of the country call for immediate actions for judicial reform.

Number of Misconducted Cases in China in 2016 (data courtesy to english.gov.cn)

In addition to the Misconducted Cases due to governmental weaknesses such as giving and taking bribes, embezzlement, dereliction of duty, abuse of power, misappropriation of funds, making false personal records or other documents, infringing on the rights of others, according to Congressional Executive Commission on China’s report, Judicial Independence in the PRC, “local governments (corrupt) to protect local industries or litigants sometimes of the administrative levels; “According to one recent SPC study, over 68 percent of surveyed judges identified local protectionism as a major cause of unfairness in judicial decisions.”

Much of the sufferings in China come from the lack of protection of individual rights, or rather the sacrificing of individual rights — especially of those who reside in the lower or middle socio-economic status —  for the collective stability of the state. The documentary Petition directed by Zhao Liang illustrates a major societal problem China faces, where common individuals wronged by their local governments travel to Beijing to “petition” for rights and retrials of their cases, but are sent back home by state-employed forces, often violently.

Poster of movie Petition (photo courtesy IMDb.com)

Current Reform Strategies

The Communist Party of China is determined to reform its judiciary in the direction of protecting individual human rights and maintaining social stability and progress. In its most recent “white paper” (an official document issued by the People’s Congress) on Judicial Reform, it acknowledges that “The defects and rigidity in China’s current judicial system and its work mechanism are becoming increasingly prominent, and they need to be improved gradually through reform.”

White Paper (photo courtesy to sina.com.cn)

China is focusing its reforms on strengthening the integrity and educational levels of justices around the country through

  • centralizing control over court finances and judicial salaries; and (minimize any possibility of judicial corruption)
  • transferring control over the appointment of judges at high-level courts or above to the central government, and control over appointments at intermediate-level courts and below to provincial governments.
  • strengthening grassroots
    • procuratorial institutions
    • police stations

Simultaneously, China is striving to eliminate any hindrances to justice by

  • clamping down control on illegally obtained evidence
  • enforcing rights of legal assistance for all defendants

Make a Difference

It is certainly hard to catalyze change within a relatively closed political community. However, much of the issues our global society faces is the inability to understand the complexity of issues and a high tendency for people to starting discussing and barking at the headlines without any concrete evidence or reasoning. Please fill out the form on how you think China could achieve an independent judiciary, or rather, obtain a healthier human rights record, and how you can make people around you more aware of pressing issues. as such.

 

Works Cited

Basic Principles on the Independence of the Judiciary. United Nations Human Rights, n.d. Web. 16 Apr. 2017.

“Big Data: Courts in China.” Big Data: Courts in China. The State Council The People’s Republic of China, n.d. Web. 18 Apr. 2017.

Chen, Xinxin. “The Chinese Definition of An Independent Judiciary.” 陈欣新:中国语境中的司法独立. Aisixiangwang, 15 Jan. 2017. Web. 20 Apr. 2017.

Fan, Mingzhi. “Why the Western Definition of Judiciary Independence Would Not Work in China.” 【司法新观察】中国国情为何不允许照搬西方司法独立. The Supreme Court, 17 Jan. 2017. Web. 20 Apr. 2017.

Fiss, Owen M. “The Limits of Judicial Independence.” Yale Law School Legal Scholarship Repository. Yale Law School, 1 Jan. 1993. Web. 20 Apr. 2017.

Forsythe, Michael. “China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince.” The New York Times. The New York Times, 18 Jan. 2017. Web. 20 Apr. 2017.

“Judicial Independence in the PRC.” Congressional Executive Commission on China. Congressional Executive Commission on China, n.d. Web. 17 Apr. 2017.

“Judicial Reform in China.” Judicial Reform in China. Scio.gov.cn, n.d. Web. 17 Apr. 2017.

Law, David S. “Judicial Independence.” Encyclopædia Britannica. Encyclopædia Britannica, Inc., 26 May 2016. Web. 20 Apr. 2017.

“Progress in China’s Human Rights in 2014 (full Text).” The State Council People’s Republic of China. Xinhua, 8 June 2015. Web. 17 Apr. 2017.

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