Balkinization: Judicial Independence in China

Judicial Independence in China

Lauren Hilgers

China's attitude toward its judiciary is reflected in the country's changing judicial uniform. Until 2001, judges donned military uniforms, a look that tied them to China’s police and military as well as to the idea that loyalty to the law comes second to adhering to the principals of party leadership.

The outfit made sense, given the beginnings of China’s legal system in the late 1970s, when retired military officers were often funneled into the courtroom. There were virtually no trained lawyers and a glut of retiring military officers. They, at the very least, looked official.

It wasn’t until 2000 that a lawyer was appointed chief justice on the Supreme People’s Court and it was 2002 when a standardized exam was implemented by China’s Ministry of Justice. Today, judges are required to pass the national exam, have a university degree, and have some experience in the legal field. According to state media reports, China’s courts now employ over 300,000 people, around 180,000 of which are judges. There is no question that judges in China have increasingly strong legal and educational backgrounds A reputation for corruption, however, and a marked lack of independence still plague the profession.

These two problems have their roots in China’s appointment process. Judges are appointed, paid and regulated by local governments. Judges who displease local officials are often in danger of loosing their jobs or giving up a promotion. Unethical judges who tip their ruling in favor of one party or another can collect bribes or at least be on the receiving end of a good dinner. Lower courts rely on funding from cities, while the courts above them are beholden to provincial officials. There are no lifetime appointments.

The situation is not unique to the judicial system. Regulatory bodies such as the State Environmental Protection Agency, also funded on a local level, are often rendered ineffective by local protectionism. For example, one environmental activist on Lake Tai outside of Shanghai was reportedly told by a local SEPA representative that the work he was doing was great, only wouldn’t he please go do it somewhere out of their jurisdiction. (The activist in question is currently in jail.)

There are a couple ways that local branches of the Communist Party (CCP) can intervene in the judicial process. The most direct way is through the political-legal committees that are set up throughout different levels of the government. The committees are headed by members of the local people’s congress and include representatives from government, police and the courts. They give government officials a direct line into judicial decisions and, although they are intended to serve in an advisory capacity, they are powerful enough to control judicial decision-making.

The hierarchy within the courts themselves also serves to limit judicial independence. Most cases are tried before a collegiate bench, and decisions are often not considered valid until the president or chief judge of a division of the court has approved. Sensitive cases require review by the court’s “adjudication committee,” which is generally made up of the president of the court as well as adjudicators appointed, again, by the local people’s congress.

When CCP leaders themselves are charged with economic crimes, litigation can only begin after a Discipline Inspection Committee finishes reviewing allegations. The real decision is often passed down from the discipline committee itself. The more sensitive the case, particularly in criminal cases, the less influence the judiciary has. Although Shanghai's former mayor, Chen Liangyu, stepped down from his post more than a year ago, he has yet to appear in court, as the Central Commission for Discipline Inspection had to first hand over an investigation report to CCP leaders.

There have been calls for reform from both inside the government and out, but the Communist Party is unlikely to sacrifice the role it plays in the judicial system anytime soon. Most lawyers seem to agree, however, that the courts become more independent the farther along in the appeals process and the farther away you get geographically. Big city courts are also considered more reliable than those in rural provinces where there is less scrutiny and the educational level of the judges is likely to be lower. Some hope that, as prosperity spreads inland from China’s coasts, the relative independence found in Shanghai will find its way across the country.

Posted 12:37 AM by Lauren Hilgers [link]

Comments:

Thanks, Lauren, for the informative overview. My understanding--about a decade old, but probably outdated--is that the final court of appeal, at least for certain important issues (appeals with respect to Hong Kong's Basic Law, for example) is a political body (or Party body). It that correct?

# posted by

Brian Tamanaha : 8:37 AM

I too appreciate this ongoing look at the -- to most people outside that country -- quite foreign realm of Chinese law.

PBS had an interesting documentary a couple months ago or so:

WIDE ANGLE gained exclusive access to film in Chinese courts - a first for a Western documentary. Profiling itinerant judges, law students, a human rights lawyer, and ordinary citizens, The People's Court examines China in flux, revealing the lengths to which Chinese people must go to obtain justice and raising crucial questions about their emerging system of law.

Those interested might want to go to the PBS site, which includes some video/audio as well.

# posted by

Joe : 9:07 AM

Lauren Hilgers writes, "Judges who displease local officials are often in danger of losing their jobs or giving up a promotion. ." Of course, one could say the same thing about many, in not most, judges within the US. There is currently a suit before the 2nd Circuit, I believe, with regard to the completely (Democratic) party-dominated process by which most local judges are chosen in that state (though they are, as a formal matter, elected). And even ambitious federal judges on what the Constitution terms "inferior" courts are certainly aware that a show of too much independence can torpedo their opportunities for promotion. It has been widely suggested that the eminent and abslutely capable Michael McConnell, now on the 10th Circuit, was passed over for the Supreme Court because he dared to find a local Colorado police officer potentially liable in a police misconduct suit. That was enough, according to rumors, to make him unacceptable to the Bush Administration, which wants only judges who will insulate the federales (and, one suspects, hired contractors) from any potential liability for any misconduct, including, of course, torture.

No, I am not saying that our judiciary is as completely "non-independent" as is China's, but no one ought to think that China is some Other against which we can pridefully measure our own superiority.

# posted by

Sandy Levinson : 2:38 PM

The account here of the political-legal committee is not quite accurate. This is a Party (not a People's Congress) body existing at the central level and with counterparts at local levels, and is responsible for coordinating the work of all the organs of state coercion, including the police, procuratorate, and courts. All members are Party people. Typically but not always the head is the head of the police - who may or may not be a member of the local People's Congress (which is not particularly powerful in the overall scheme of things). If the Party organization at some level had a position on the desired outcome of a particular case, this is the institution through which it would make its wishes known. That decision would in turn be effected within the court via the adjudication committee, which is composed of the court president and senior judges (who are really more administrators than judges).

To answer Brian's question, the Supreme People's Court is the top court in the mainland and the Court of Final Appeal is the top court in Hong Kong. There is no further appeal from their decisions. You may be thinking of the National People's Congress Standing Committee, which has the formal constitutional authority to interpret the constitution and statutes, and to which the courts may direct questions in the course of their adjudication. (The NPCSC can also issue interpretations sua sponte.) But it's not like the Privy Council in functioning as a court of final appeal.

# posted by

Unknown : 11:30 PM