As with most Economist pieces.. a little arrogant with some interesting insight. Worth a read even if we all know it already.
Judges are often impotent in China’s courtrooms. That might be changing
IN JULY Zhou Qiang, the president of China’s Supreme People’s Court, visited Yan’an, the spiritual home of the Communist Party in rural Shaanxi province, to lead local court officials there in an old communist ritual: self-criticism. “I have grown accustomed to having the final say and often have preconceived ideas when making decisions,” one local judge told the meeting. “I try to avoid taking a stand in major cases,” said a judicial colleague. “I don’t want to get into trouble.”
In China’s judiciary such shortcomings are the norm. But change may be coming. On July 29th it was announced that the party’s Central Committee, comprising more than 370 leaders, will gather in October to discuss ways of strengthening the rule of law, a novelty for such a gathering. President Xi Jinping, who is waging a sweeping campaign against corruption, says he wants the courts to help him “lock power in a cage”. Officials have begun to recognise that this will mean changing the kind of habits that prevail in Yan’an and throughout the judicial system.
Long before Mr Xi, leaders had often talked about the importance of the rule of law. But they showed little enthusiasm for reforms that would take judicial authority away from party officials and give it to judges. The court system in China is often just a rubber-stamp for decisions made in secret by party committees in cahoots with police and prosecutors. The party still cannot abide the idea of letting a freely elected legislature write the laws, nor even of relinquishing its control over the appointment of judges. But it is talking up the idea of making the judiciary serve as the constitution says it should: “independently … and not subject to interference”.
In June state media revealed that six provincial-level jurisdictions would become testing grounds for reforms. Full details have not been announced, but they appear aimed at allowing judges to decide more for themselves, at least in cases that are not politically sensitive.
There is a lot of room for improvement. Judges are generally beholden to local interests. They are hired and promoted at the will of their jurisdiction’s party secretary (or people who report to him), and they usually spend their entire careers at the same court in which they started. They have less power in their localities than do the police or prosecutors, or even politically connected local businessmen. A judge is often one of the least powerful figures in his own courtroom.
“It’s not a career that gets much respect,” says Ms Sun, a former judge in Shanghai who quit her job this year (and who asked to be identified only by her surname). The port city is one of the reform test-beds. “Courts are not independent so as a result they don’t have credibility, and people don’t believe in the law.” She says people often assume judges are corrupt.
Career prospects are unappealing for the young and well-educated like Ms Sun, who got her law degree from Peking University. The overall quality of judges has risen dramatically in recent decades, but there are still plenty of older, senior judges with next to no formal legal training. Seeing no opportunity for advancement after eight years, Ms Sun left for a law firm and a big multiple of her judge’s salary of about 120,000 yuan ($19,000) a year. She says many other young judges are leaving.
It is unclear how much the mooted changes will alleviate these concerns. Those Shanghai courts that are participating in the pilot reforms (not all are) are expected to raise judges’ pay. They are also expected greatly to reduce the number of judges, though younger ones fear they are more likely to be culled than their less qualified but better connected seniors.
The most important reforms will affect the bureaucracies that control how judges are hired and promoted. Responsibility will be taken away from the cities and counties where judges try their cases, or from the districts in the case of provincial-level megacities like Shanghai. It will be shifted upwards to provincial-level authorities—in theory making it more difficult for local officials to persuade or order judges to see things their way on illegal land seizures, polluting factories and so on.
Central leaders have a keen interest in stamping out such behaviour because it tarnishes the party’s image. But many local officials, some of whom make a lot of money from land-grabs and dirty factories, will resist change. With the help of the police they will probably find other means to make life difficult for unco-operative judges. And provincial authorities are still likely to interfere in some cases handled by lower-level courts, sometimes in order to help out county-level officials.
An oft-stated goal of the reforms is that “judges should decide the cases they hear, and they should hear the cases they decide.” But Mr Xi is also making it clear that the party remains the ultimate arbiter. He is trying to boost loyalty to the party among judges and other court officials by requiring they attend ideological “study sessions”. Most judges and prosecutors are party members.
The party is also clamping down further on defence lawyers who take on politically sensitive cases. The feistiest are often harassed by police or even jailed for speaking out about injustices. In June it emerged that the party-run All China Lawyers Association had drafted guidelines discouraging both legal activism and public criticism of court decisions. The rule of law seems to mean running the courts more efficiently but still in the service of the party.
