Introduction
From a lawless nation governed by nothing but campaigns and a personality cult, to what is arguably the most sophisticated autocratic apparatus in the modern world, China’s authoritarianism evolved along with every other aspect of its society. To manage a myriad of conflicting interests and salient social cleavages in a forever-changing nation of more than 1.4 billion citizens, lawlessness is not the solution. Nonetheless, after waves and waves of legal reform, it is safe to say that the Communist Party is not going to facilitate a strong and independent judiciary, a hallmark feature of robust legal institutions, anytime soon. This article will explore why the judiciary is not a coequal branch of government but considered by the Communist Party as a tool to ensure regime survival.
The Status Quo
Unlike most other countries, China is not shy about how its judiciary is both nominally and substantively an inferior branch in its governance. In a Constitutional sense, both the Supreme People’s Court and Highest People’s Procuratorate answer to the People’s Congress, the highest decision-making body in Chinese bureaucracy and a partisan legislative body dominated by an insurmountable Communist majority. And while the Supreme People’s Court can issue interpretation upon legislations and distribute adjudicating guidelines, the Court is noticeably not bestowed with the power of judicial review, a deliberate choice consistent with their duty to answer to the legislative branch that also happens to monopolize on the power to interpret the Constitution. (PRC Constitution)
The Judiciary also enjoys slim to nil independence in its operations. The Communist Party established Political-Legal Committees on every level of government to provide tight oversight over judicial matters that may have a political impact. The branches of the Communist Party permeate every corner of the Court and the Procuratorate to provide political leadership. Judicial Committees, described as a form of “collective leadership over judicial matters” and comprised of court supervisors, can directly intervene in a case that they do not preside over and override the decision of the presiding judge. (Liebman, 47)
The most poignant and telling fact about how low the judiciary ranks in terms of precedence in the Chinese government is that Zhou Qiang, the Chief Justice and President of the Supreme People’s Court, is not even a member of the Politburo, let alone the Standing Committee. (Forsythe)
A Means to An End
“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.”
When Chief Justice Zhou Qiang made these comments in 2017 decrying judicial independence as a wester ploy to destabilize the Communist rule, Peking University Law Professor He Weifang publicly challenged Zhou’s intention as “wrecks the nation and harms the people (禍國殃民)” and called the comments emblematic of “legal illiteracy”. (Forsythe)
Legal reform has always been a delicate balancing act in China to achieve something other than justice. In the CCP’s quest for regime stability and survival, the categorical imperative of the Kantian view of justice seems more like an afterthought. The judiciary must be weak enough for the party to pull strings and to protect its own core interests. The judiciary also must be strong enough for the modern rules-based governance to persist and provide institutional resilience.
Carlos Lo tends to contradict the notion that there was no real intention on the communist side to liberally reform the judicial branch to make it a coequal branch. He describes Deng Xiaoping’s original reasoning at the beginning of modern legal reforms for strengthening the legal system in detail. As a victim of the lawless campaigns of the Mao era, Deng roundly rejected the rule of persons (人治). (Lo, 34)
“Very often, what leaders say is taken to be the law and anyone who disagrees is called a law-breaker. Such law changes whenever a leader’s views change.”
Lo argues that Deng’s intention was genuine, that the institutional design to make the judicial system more vertical so that local special interests have a harder time intervening in cases reflects a vision for more independence, albeit to varying degrees of effect. (Lo, 36)
Even though similar efforts have been made, the fundamental relationship between the Communist ideology and the court remains unchanged. And such relationship determines whether the party in itself is willing to relinquish some of its control. Deng himself believed that the Socialist ideology and the legal system must work in tandem. The ideology, the undisputed source of legitimacy, should be incorporated into a legal system, with the highest authority in the land, that bolsters the communist rule. (Lo, 33)
A Retreat from Rules
For decades, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. But just like any other tool, its utilization is selective. Unlike many other countries, the judiciary is intentionally designed to be optional.
Dr. Benjamin Liebman argues that recent leaders are increasingly skeptical about the role of the judiciary as a means to achieve stability. By resorting to more rapid, unofficial resolution methods such as mediation from standard legal proceedings, their trust seems to be dissipating in legal institutions to spearhead resolutions addressing many of the most prominent political and social cleavages as a result of China’s radical transformation in the past 3 decades. (Liebman, 101)
He singled out the Hu-Wen era as a turning point in the slowing legal reforms in China. In accordance with the concept of harmonious society, mediation is encouraged over litigation due to “the belief that mediated cases are less likely than adjudicated cases to result in escalation and unrest.” (Liebman, 100) Deemphasizing legal procedures does come with political benefits to the ruling party. Should a major dispute over public administration erupt, court proceedings are often highly publicized and damaging to those in power. Why expose potential incompetence, negligence or corruption when a case can be settled out of court with a legally dubious Non-Disclosure Agreement?
Conclusion
Any legal reform in China serves the same purpose as laid out in the Communique of the 1978 Third Plenum: unity and political stability. That ultimate goal continues till this day. The judiciary is more concerned about ephemeral issues rather than fundamental justice. A system bedeviled by partisan interests and populist tendencies is not meant to be independent by design. Therefore, any remaining hope for a more robust judiciary is completely at the mercy of CCP’s central leadership. So far, there has been no evidence that the CCP will be loosening some of its iron grip anytime soon.
Works Cited
PRC constitution 1 (4th revision) 410/04.03.14; (2004). China Law & Practice, , 1. Retrieved
from http://ezproxy.library.ubc.ca/login?url=https://search-proquest com.ezproxy.library.ubc.ca/docview/224816544?accountid=14656
Lo, Carlos Wing-hung, and Project Muse University Press Archival eBooks. China’s Legal Awakening: Legal Theory and Criminal Justice in Deng’s Era. Hong Kong University Press, Hong Kong, 1995.
Liebman, Benjamin L. “Legal Reform: China’s Law-Stability Paradox.” Daedalus, vol. 143, no. 2, 2014, pp. 96-109.
Forsythe, Michael. “China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince: Foreign Desk.” New York Times, 2017.