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]