No Law's Land

ELENA URSU chronicles China's steps toward an independent judiciary.

The annual meetings of the National People's Congress and the China People's Political Consultative Conference, commonly known as the "Two Sessions," took place in Beijing this past March. The Sessions represented an opportunity to reaffirm the government's commitment to judicial reform and to discuss new guidelines issued by the Supreme People's Court (SPC) in 2015. In its report the SPC envisioned the implementation of conspicuous reforms relating to the organization and administration of the courts and called for judicial independence. But is there space for such far-reaching reform in China?

Calls for legal and judicial reform in China have persisted since Mao Zedong's successor Hua Guofeng promulgated China's new constitution in 1978. In his 1978 speech introducing the policy of "reform and opening" (gaige kaifang) to the outside world, Deng Xiaoping identified the creation of a "socialist legal system" as a foundation of China's "socialist democracy" (shehui zhu fazhi). Some scholars have argued that Deng inaugurated a golden age of legal reform in China which is still ongoing. At the Thirteenth National Congress of the Chinese Communist Party in 1987, the Party General Secretary Zhao Ziyang announced his decision to start "working on (economic) construction with one hand and working on the legal system with the other," referring to the creation of laws to regulate economic development. Rule of law came to the fore again in 1996, when PRC President and CCP General Secretary Jiang Zemin addressed the importance of "ruling the country according to the law."

Former President of the Supreme People's Court (SPC), Xiao Yang said in 2007, "the power of the courts to adjudicate independently doesn't mean at all independence from the Party. It is the opposite, the embodiment of a high degree of responsibility vis--vis Party undertakings."

The vitality of legal scholarship has also increased in China since 1978. Legal scholars and practitioners have advocated for human rights laws (which was acknowledged for the first time in a 2004 amendment of the Constitution), judicial reform, and fair enforcement of the Constitution with increasing urgency. Recent Chinese legal scholarship has also debated topics in the domains of intellectual property, trade, and investment, along with the relative merits of rule of law in accordance with international standards. The CCP has at times shown its support for these principles in the international community, signing the International Covenant on Economic, Social and Cultural Rights in 1997 and the International Covenant on Civil and Political Rights in 1998. The Party has also continued to show limited support for legal reform domestically. At the Seventeenth National Congress of the CCP in 2007, President Hu Jintao again called for the establishment of the concept of socialist rule of law. Yet, in the same speech, President Hu also stressed the the importance of Party leadership and the Party's role in shaping the development of socialism with Chinese characteristics.

In recent years, judicial reform has emerged as a key Party goal. In 2012 when the Eighteenth Central Committee was elected, CCP authorities made legal reform the focus of their annual plenum for the first time. In a speech, President Xi Jinping, declared that the party "should build a socialist country with the rule of law, and develop people's democracy with wider participation." Xi's administration has continued to identify judicial reform as a central priority. Limiting the influence of local officials, improving judicial professionalism, standardizing judicial procedure, and distinguishing between the role of judges and that of other state officials are among the key features of the new blueprint for the rule of law in the country. Nevertheless, it is difficult to predict whether these ideas will materialize.

What does judicial reform entail in China?

Xi's challenge has been to achieve judicial reform within the political constraints of a single-party state. Xi's predecessor Jiang Zemin stressed the fundamental role of the Party in shaping the legal reform agenda: "Leadership by the Party is the fundamental guarantee that the people are the masters of the country and that the country is ruled by law. Ruling the country by law is the basic principle the Party pursues while it leads the people in running the country."

An independent judiciary is generally considered to be the key to legitimate rule of law. In 1985, the United Nations adopted the "Basic Principles on the Independence of the Judiciary." Under these principles, every member state is expected to constitutionally guarantee independence to its own judiciary. Furthermore, contemporary international law recognizes judicial independence as a core and foundational principle. On the surface, Chinese law guarantees judicial independence, too. According to article 126 of the PRC Constitution, "the people's courts exercise judicial power independently, in accordance with the provisions of law, and not subject to interference by any administrative organ, public organization or individual." A 1995 law which stipulates the rights of judges, states that there should be "no interference from administrative organs, public organizations or individuals in trying cases according to law." Yet neither provision explicitly prohibits interference by a political entity. Therefore, the central question of judicial reform in China remains whether an independent judiciary can coexist with the CCP.

China is a socialist country where the CCP is the permanent ruling Party. Former President of the Supreme People's Court (SPC), Xiao Yang, clarified in 2007 that an unequivocal separation between the Party and the judiciary is inconceivable: "the power of the courts to adjudicate independently doesn't mean at all independence from the Party. It is the opposite, the embodiment of a high degree of responsibility vis--vis Party undertakings." Legal scholars and practitioners outside China should not take this remark as a complete rebuke of the principle of judicial independence. In a single-party State, the Party necessarily influences the work of the Courts, but the Party does not literally hold dominion on every decision issued by every judge in every legal proceeding. Its presence is no more overwhelming in the judiciary than in any other sphere of public interest.

To reform or to rebuild?

It is difficult to know, then, what judicial reform can entail given the CCP's restrictions. In 2012, a white paper issued by the Information Office of the State Council called for the establishment of an impartial, authoritative, and efficient judicial system aimed at safeguarding the legitimate rights and interest of the citizens. It also stated, however, that the judicial system may not infringe upon the interests of the State, the interests of society, or upon the lawful freedoms and rights of other citizens.

Given the Party's constraints, academics and public interest lawyers have called for bottom-up judicial reform through legal scholarship and public participation. Advocacy groups such as the Weiquan Movement, comprising of lawyers, legal experts, and intellectuals have criticized the Party's oversight of the justice system. But reforming a legal ideology which prioritizes political legitimacy over professional autonomy will be an onerous task, especially since the Party has already built a system that serves its political interests and legitimizes its own actions.

In order to curb political influence in the legal system, the Party would have to take on a different role in the state with more limited powers. It is, nevertheless, implausible that the Party will completely abdicate its role in shaping the ideological and political orientation of judges. In 2015 the Supreme People's Court emphasized the interdependence between justice and politics in China: "people's courts deepening judicial reform shall adhere to the Party's leadership to ensure that judicial reforms maintain the correct political orientation."

Stanley Lubman, a leading scholar of Chinese legal reform in the post-Maoist era, has addressed the interdependence of justice and politics in the unique Chinese legal context and the potential for substantial reform. In a 1991 study, Lubman acknowledged the novelty, fragility, and incompleteness of Chinese legal institutions. What political leaders rendered as "Chinese characteristics", he called "Chinese limits": the lack of an integrated legal system, the view of law as an instrument of administration, and divergent conceptions of 'rights.'

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More important than castigating China's efforts at legal reform, however, is comprehending the forces that are at work today shaping China's path. Efforts to understand Chinese society and culture should complement endeavors to understand the forces that influence legal institutions. The Party's instrumentalist approach to law remains the dominant influence in China's legal development. While the Party continues to employ an instrumental approach to legality and while judges continue to follow the Maoist concept of unity in law and politics, China continues to see positive developments toward the rule of law. As Chinese law expert Jerome Cohen has noticed, judicial independence has increased, especially in cases involving business law.

In China, law is a mechanism for the exercise and safeguard of the Party's power and legitimacy. The role of law has traditionally been that of preserving social order and achieving prefixed market-oriented goals. Application of law by the judiciary has necessarily suffered from related shortcomings. Complete judicial independence in the style of liberal Western democracies is unattainable in the short term, but in the past decades the government of China has embraced the case for reform of its legal institutions, at least on paper. While the CCP's efforts at judicial reform may appear inadequate when measured against countries in the West, its rhetoric on the topic of rule of law indicates that the Party at least takes the issue seriously. In the years to come, China may shape its own path toward rule of law in a manner inconsistent with our expectations and hopes.

Elena is a Yenching Scholar at Peking University. Contact her at aeu@pku.edu.cn.

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