an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For China’s judiciary, the final months of 2008 draw a messy conclusion to a chaotic year. Courts in Southern China are overwhelmed as the financial crisis brings labor issues bubbling to the surface. Charter 08, a call for government reform signed by more than 300 Chinese intellectuals and activists, has led a number of recent detentions and observers are waiting for signs of how the government will deal with them.
Among the controversies that are ringing in the New Year, hints of a tug-of-war in the Supreme People’s Court are surfacing with relatively little notice outside of China. A new president at the SPC seems determined to cut back on judicial independence, while reports from the Central Committee of the Communist Party continue to promise judicial reform.
Change has been afoot since March when the SPC presidency changed hands, marking the end of an era. For nearly 10 years, a veteran government prosecutor and legal scholar, Xiao Yang, was at the helm of the SPC. During his time as president of the court, Xiao was known for pushing professionalism in the judiciary. He played a large role in implementing the SPC review of death penalty convictions, formerly the responsibility of provincial courts.
Xiao handed over the reins this year not to another legal scholar, but to the former police chief of Anhui Province, a poor and flood-prone province just west of Shanghai. Wang Shengjun is first and foremost a Communist Party man with little legal training. His appointment raised some eyebrows—was this a move by President Hu Jiantao to gain more control over China’s courts? Wang has changed the tone at the SPC in a matter of months by taking up the doctrine of “Three Supremes,” a philosophy espoused by Hu for about a year now. The “Three Supremes” are the party’s cause, the people’s interest and the constitution and laws. Wang’s recent speeches have emphasized the need to measure all three, rather than focus on laws alone. In considering the death penalty, Wang has suggested that the court should take into consideration the sentiment of local courts and officials.
The makeup of the SPC changed further with the loss of Huang Songyou, who stepped down and was detained on allegations of corruption. An advocate of constitutional law, Huang gained notoriety in 2001 in relation to the case Qi Yuling vs. Chen Xiaoqi et al. The court ruled that Qi Yuling’s constitutional right to education had been infringed upon by Chen Xiaoqi and that Chen and should bear civil liability. Huang argued that the case set the stage for China’s constitution to play a greater role. “It creates a precedent of institutionalizing the constitution in the judicial process,” he wrote in 2002. “The case showed that citizens’ basic constitutional rights can be enforced in ordinary civil proceedings.”
Huang stepped down from his position as vice president of the SPC in October, when he was detained in relation to a corruption case involving property in Guangzhou. While the corruption appears real, the timing suggests Huang's detention could be a sign of Wang’s consolidation of power. Rumors circulated for a while that the investigation would also rope in Xiao Yang himself. A well-publicized meeting between Wang and Xiao a few weeks ago seemed orchestrated to put those rumors to rest.
Huang’s loss and the recent emphasis on the “Three Supremes” may sound grim, but the party continues making noises about judicial reform. The Central Committee of the Communist Party issued a resolution last month pledging to pursue judicial reform, seemingly aimed at putting to rest concerns that Wang Shengjun would take the three Supremes too far. Details on the nature of reform, however, were slim.
"The reform must be put under the party's leadership and carried out actively yet steadily,” said a report issued after the meeting. “Judicial reform will be carried out in its own manner and at its own pace.”
One positive sign is a proposal to centralize the funding of China’s courts, which now rely on local government funds to continue operating. With Wang in charge of the court, however, judicial reform could have any number of meanings.