Jerome A. Cohen is an NYU law professor, co-director of its U.S.-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations. He has published many books and articles on China and recently co-authored “Challenge to China: How Taiwan Abolished Its Version of Re-Education Through Labor” (Berkshire 2013).
Here’s the article that we received via LIS-LAW.. he’s a bit more positive than us about the party and the way it deals with “The Law”
Struggling for Justice: China’s Courts and the Challenge of Reform
By Jerome A. Cohen, on 14 Jan 2014,
China’s new leaders are striving to consolidate their country’s return to prominence on the world stage. They confront Promethean challenges: restructuring a dynamic economy; responding to the demands of an increasingly prosperous and sophisticated society; controlling horrendous environmental pollution; liberating the cultural, civic, academic and intellectual potential of their talented people; reducing the endemic corruption that is undermining their success; adapting the Communist political system to promote these prodigious changes while balancing the needs of public order and human rights; and improving cooperation with other countries by enhancing foreign respect for China’s accomplishments.
Courts, or some effective functional substitute, are essential for the attainment of all these goals. Yet China’s judicial system is in the midst of a crucial struggle to determine its nature, role and power.
China’s new leaders are making bold policy statements promoting the notion that, in their decision-making, Chinese courts should exercise greater independence from local authorities and other distorting influences. They have announced a series of new measures and experiments designed to increase the legitimacy of the judicial process and garner greater public support for it. These reforms face serious challenges, but the current attempt to chart a new course deserves our attention, study and encouragement.
Background
First, some language clarifications. Foreign observers frequently misunderstand the Chinese Communist Party’s use of the term “judicial system,” which includes not only the courts but also the police as well as the procuracy (prosecution). Meanwhile, the contemporary Chinese terms “shenpan yuan” and “faguan” are usually rendered as “judge” in English, instead of their more literal translation as “adjudication person” and “legal official.” The word “judge” implicitly evokes the image of a Western-style judge. Although it has been more than a decade since a reformist Chinese chief justice ordered his colleagues to don black robes instead of their previous military-type garb, anyone familiar with their operations knows that these adjudicators lead different professional lives from their Western counterparts.
Chinese courts report to the nominally all-powerful National People’s Congress (NPC). Although the nation’s judiciary is formally separate from the executive branch as well as the procuracy, the status of judges is not very different from that of other members of a vast government bureaucracy, and they are subject to a detailed, rather mechanical system—analogous to the general cadre evaluation system—for evaluating their performance. Yet they are gradually becoming professionally more distinctive.
China’s courts are increasingly staffed by personnel who have received formal legal education at undergraduate or graduate university levels as well as at a national judicial college. While emphasizing “socialist law with Chinese characteristics,” their studies have generally inspired respect for continental European civil law and Anglo-American common law models. This is a major change from earlier decades when, even after the post-Cultural Revolution re-establishment of the courts in the late 1970s, most judges continued to be recruited from the army or the police. Nonetheless, some Chinese scholars contend that, particularly in the rural areas that are still home to more than half the country’s population, the basic courts would be better served by judges who had less legal education but more real-life experience than recent young recruits, who know only law on the books and lead a sheltered existence.
Although judges generally must now pass a national civil service examination as well as a national judicial examination, they are hired not by a central judicial office but by local courts, usually with the approval of the court’s Communist Party political department. Most are, or soon become, party members and therefore subject to the discipline of the party organizations within and outside the court as well as the discipline of the judicial hierarchy. One of the central facts about China’s judicial bureaucracy is that it is intimately intertwined with the party bureaucracy, as we shall see. Another crucial factor is that the courts have largely been financed from local government sources rather than from central or provincial coffers, which stimulates their responsiveness to local pressures.
After a period of apprenticeship, Chinese judges are assigned to one of the specialized court divisions dealing with criminal, civil, administrative and other types of cases. Except in matters of minor importance, they normally operate in panels of three. There is a two-tier adjudication arrangement. Most cases tried in the first instance court are handled by a single professional judge sitting with two “people’s assessors” selected from a roster of approved laymen available to give proceedings the appearance of popular democracy. In practice, assessors ordinarily take their cues from the judge in charge. Decision-making on appeals to the second instance tribunal is usually dealt with by a collegiate panel of three career judges.
Yet some sensitive cases are never accepted for court deliberation. Under instruction from central, provincial or local authorities from the party, government or court, a court’s case reception division may simply refuse to inscribe a civil or administrative law complaint without offering adequate reasons. Even commercial cases as well as challenges to the regulations and actions of administrative agencies are sometimes rejected, creating extreme frustration among individuals and groups seeking judicial remedies for their economic, social and political grievances. Before he was imprisoned and later released to study in the United States, Chen Guangcheng, the blind legal activist, was frequently rebuffed in his efforts to use the courts to remedy injustice, whether the case involved illegal taxation, unfair denial of a business license or unlawfully coerced abortion or sterilization. “What do they want me to do?” he once asked me. “Go into the streets? I don’t want to do that.”
Nevertheless, China’s courts are overrun with civil cases, despite periodic nationwide campaigns to settle disputes through pretrial judicial mediation as well as popular mediation institutions outside the courts. Government-established arbitration commissions also relieve the courts of many disputes. Yet in 2012, the most recent year for which statistics are available, more than 12 million trial and appellate cases were before the courts, more than China’s roughly 200,000 judges can comfortably handle. In that year they had to cope with more than 6.6 million new civil cases, 136,000 new administrative law challenges and 840,000 new criminal cases.
In these circumstances, trial court hearings have generally been brief and more often focused on documents, including transcribed pretrial witness statements, than on live testimony—except from the parties to the dispute—but a new civil procedure law emphasizes witness appearances in court. China now has more than 220,000 lawyers available to represent the parties and aid the courts. Because of the greater opportunities for earning income, their presence is more apparent in civil and administrative matters than in criminal cases, where most defendants still are unrepresented.
The judicial activities of lawyers are restricted in many ways. To an American observer, the most striking limitation on Chinese lawyers is an inability to invoke constitutional protections before the courts. Despite a brief flurry of uncertainty a decade ago, Chinese courts are now plainly prohibited from deciding constitutional issues. Those issues are the exclusive province of the NPC Standing Committee, which has proved adept at avoiding them.
The trial of criminal cases is especially problematic. Many uncontested prosecutions are disposed of through simplified procedures that do not guarantee an uneducated defendant’s comprehension of the charges and choices confronting him. When lawyers do take part in criminal trials, their opportunities to demonstrate their skills are often limited, despite legislative amendments designed to aid their performance. Whether new procedural reforms will be more successful than previous ones in securing the appearance of witnesses in court—witnesses appear in fewer than 5 percent of prosecutions—has yet to be proved. Requiring witnesses to come to court and be subject to questioning and cross-examination will be a major test of judicial power. Getting policemen to submit to cross-examination in response to defense claims that they used torture to obtain confessions will be a particularly significant challenge.
One of the most controversial aspects of Chinese trials is that, in cases of any sensitivity, whether criminal, civil or administrative, the judicial panel that tries the case does not decide it. Generally, the division chief or his assistant, after the routine review they accord every proposed decision, will pass difficult or sensitive cases to the court chief or one of his deputies, usually for approval by the court’s “adjudication committee” comprising the court leadership. This group, after merely hearing a trial panel’s summary and recommendation, then makes the decision under the guidance of the court’s chief judge.
The decisions of judges and the adjudication committee are often influenced by a range of factors in addition to those intrinsic to the legal merits of a case. The protection of local interests may be crucial to the resolution of a business dispute between a local company or person and those from elsewhere in China or abroad. Judicial corruption is frequently a major factor, even in criminal cases. “Guanxi,” the network of personal relations that judges sometimes find more compelling than legal norms, may prove even harder to detect and eradicate. In criminal and certain other cases, ever-present in the judicial mind is the need to “maintain social stability,” that is, to take account of public opinion in cases that attract popular attention, even if that requires misapplication of substantive or procedural law. A court may also yield to the blandishments of an influential or aggressive litigant who otherwise threatens to petition against its decision all the way to Beijing.
Judges may be informally bombarded from many sources, including local government or party officials; members of the local people’s congress, which, in addition to the procuracy, is supposed to supervise the work of the local courts; members of the local people’s consultative conference or other prominent residents; judges from a higher court; and individual provincial or central party or government leaders.
This puts judges, who do not enjoy life tenure or long-term job security, under considerable pressure. The Chinese Constitution purports to guarantee courts as an institution with the right and obligation to carry out their duties independently, but no legal provision protects the independence of an individual judge. Moreover, despite the constitutional protection of the courts’ independence, there is no clear understanding of the meaning of that protection, and the party maintains a formal system of external control over judicial decision-making by means of a local party political-legal committee (LPLC). The committee decides the outcome of important cases for the courts at its level of the party-state organization as part of its responsibilities for overall “coordination” of all local “judicial institutions,” including the police, procuracy, justice bureau and court. Any doubts that a court may have about the needs of “social stability” are resolved by the LPLC.
The leaders of each of the local legal institutions take part in the LPLC. That committee was generally headed by the local police chief, whose government rank is inferior to that of some other committee members but who outranks them in the party hierarchy. Recently, however, as part of a new, ongoing central effort to improve the administration of justice, leadership of the LPLC reportedly has generally been given to a deputy party secretary of the overall party committee responsible for the locality. The new reform spirit has also reportedly begun to cut back or perhaps even eliminate the power of the LPLC to decide concrete cases, restricting its purview to more general matters such as policy issues, personnel appointments, promotions and removals, and other administrative issues.
These changes have been fueled by growing popular dissatisfaction with the perceived unfairness of the country’s courts and with the party’s responsibility for it. A spate of embarrassing, highly publicized wrongful criminal convictions has spurred a nationwide sense of injustice, and this brings us to the current ferment over the judicial process.
The Current Struggle
In November 2012, the Chinese Communist Party’s 18th National Congress introduced a new elite to govern the country for the next 10 years under the leadership of party General Secretary, and soon to be President, Xi Jinping. Among the confusing welter of subsequent developments, three trends appear to have emerged relating to law, justice and the courts.
First, repression of constitutionally guaranteed freedoms of expression has become even harsher than under the previous administration led by Hu Jintao, with the courts as well as the police and procuracy serving as the evident tools of the party’s new elite. Almost daily accounts on the Internet and in social media report examples of arbitrary conviction of nongovernmental reformers, human rights proponents, political dissidents, religious figures, minority protesters and other activists, as well as gross mistreatment of the accused and their would-be lawyers, witnesses, families and supporters, both inside and outside the courtroom.
Second, legislation relating to criminal justice has, by and large, nevertheless continued to improve. One of the earliest acts of the new administration was to endorse and promulgate a substantially amended criminal procedure law that, as already indicated, in many respects promises increased fairness in the court system. At its most recent meeting, the NPC Standing Committee finally abolished the pernicious system of “re-education through labor,” the most infamous of several supposedly “noncriminal” administrative punishments that have undermined the power of the courts by authorizing the police to condemn people to detention in a labor camp without necessary judicial involvement. As Zhou Qiang, China’s newly appointed chief justice, alerted the courts last fall, one of the immediate consequences of this legislated progress toward the rule of law would in all likelihood be a very significant increase in court burdens, since many cases formerly disposed of through “re-education through labor” would soon be prosecuted as minor crimes and require court approval.
The third trend is the most interesting for our purposes. It is the recent effort of high-level law reformers within the party as well as the judiciary to transform relevant party and government ideology, policy and disciplinary systems in ways that will reduce the huge existing gap between repressive practice and enlightened legislation in the administration of criminal justice. This effort is centered in the new leadership of the Supreme People’s Court (SPC) headed by Zhou, who, unlike his predecessors, combines high-ranking status within the party with impressive legal skills and a zest for reform.
Zhou and his colleague, Deputy Chief Justice Shen Deyong, are obviously seeking to rescue the traditionally poor reputation of the national court system. The credibility of the courts has recently been further damaged by, among other things, the many recently publicized wrongful convictions. Even Xi and his choice to head the party’s Central Political-Legal Commission, former Minister of Public Security Meng Jianzhu, have publicly and repeatedly recognized the urgent need to instill popular confidence in the courts.
Indeed, in January 2013 they initiated the current campaign to bolster the courts, and in late February Xi delivered a speech to a study session of the party Politburo devoted to problems of the rule of law. Xi urged the judicial organs to cope with “the deep issues that interfere with judicial justice and restrain judicial capacity.” The courts and the procuracy must be allowed to carry out adjudication and prosecution independently and impartially, he stated, and he made clear that this would require restraint on party organizations at all levels, which “must act within the boundaries of the constitution and the laws.”
Xi’s remarks opened the way for a series of speeches by Zhou and Shen during the spring and summer that focused on correcting and preventing wrongful convictions. In May, in a long article published in the SPC’s newspaper that elaborated on his speeches, Shen boldly set forth both the spirit and detailed prescriptions of the new campaign. In addition to stressing the importance of judges and their commitment to professional standards, Shen wrote that China must abandon the presumption of guilt that infects practice. “We would rather wrongfully release a person than wrongfully convict someone,” he added. The presumption of innocence, he stated, forbids convicting an accused where the evidence is insufficient and then giving him a less severe punishment as a kind of compromise, a practice that I have personally encountered in advising in Chinese human rights cases.
Shen emphasized the value of judges complying with legal procedures, especially the presumption of innocence, and applying science and technology to evidence in order to avoid unjust outcomes. “From the perspective of preventing wrongful conviction,” he stated, “defense lawyers are the most trustworthy and reliable force” and their legal rights must be respected. Shen frankly admitted that injustices often resulted from Chinese courts taking orders from outside sources, abandoning their principles or being sloppy in their work.
Not long after Shen’s essay, the Ministry of Public Security announced its support for the campaign. Then in July, the Central Party Political-Legal Commission (CPLC) issued its stunning “Provisions on Earnest Prevention of Miscarriage of Justice,” one of the most important official human rights documents to appear in China in recent years.
With none of the ideological cliches that too often mark party and legal documents, the provisions, after a brief confirmation that they are based on the instructions of Xi Jinping and the CPLC leadership, set forth the goal of preventing miscarriages of justice through “strict adherence to legal procedure.” This would “punish crime in accordance with law, respect and safeguard human rights, increase the credibility of the judicial system, and uphold social fairness and justice.” Though a tall order indeed, the candid recognition of the failings of the criminal justice system revealed in the 15 articles that followed and their specific recommendations for improvement certainly suggested the seriousness with which China’s most authoritative legal institution viewed the situation.
To be sure, the provisions, which apply to the police and the procuracy as well as the courts, “merely” reaffirm the basic protections of suspects and the accused already enshrined in China’s constitution and legislation and reiterated in the SPC campaign documents of the preceding months. But their specific recommendations go beyond the recitation of relevant norms. Procurators are instructed to be more active in exercising supervision over both investigators and judges. Judges and other officials are given detailed instructions about how to treat defense counsel with greater respect, including the obligation to answer their arguments when writing judicial decisions. Judges are also warned that they must not allow the pressures of public opinion, official “stability maintenance,” aggressive litigants or evaluation of their performance in terms of the number of cases handled, conviction rates or deadlines to distort their judgments. Prison officials are required not to withhold inmate petitions from the courts.
The provisions emphasize holding judges and other legal officials “accountable for life” for their illegal actions and require the establishment of appropriate mechanisms for pursuing those responsible and subjecting them to severe sanctions, including criminal punishment.
Perhaps most difficult to implement will be the principles set forth in the last of the provisions, which seeks to terminate or dramatically reduce the control of local party political-legal committees over court judgments. It orders the local committees to “support the independent and fair exercise of judicial and procuratorial powers by the people’s courts and people’s procuracies.” The court, the procuracy and the police are each supposed to work “in an independently responsible and coordinated manner in accordance with the constitution and laws.” The meaning of this phrase is clarified by the final words of the provision, which state that, when “coordinating” the opinions of the courts and other law enforcement units regarding individual cases, the local party political-legal committee should “generally refrain from giving specific opinions regarding the determination or substantive handling of the case.”
Not surprisingly, scattered and preliminary reports about the extent to which this last provision is being implemented suggest that local CPLC subordinates may not be complying with its spirit. Plainly, if China’s courts are ever to move toward meaningful judicial independence, implementation of this provision will be critical. Yet, although SPC leaders have repeatedly advocated, and begun to implement, greater transparency and openness for the court system, they are unlikely to ventilate this crucial but most sensitive aspect of judicial affairs. Moreover, transparency might prove embarrassing to both party leaders and the SPC by providing further proof that, even in a Leninist party-state, the center’s writ can sometimes be ignored.
Issuance of the provisions in August 2013 did not stem the flow of legal documents concerned with wrongful convictions. The Supreme People’s Procuracy joined the bandwagon in September, and the SPC then promulgated two major, detailed documents.
The first of these, issued Oct. 28, renewed the campaign’s basic theme of independent exercise of judicial power in accordance with law to improve the quality of adjudication, but it featured two aspects that had not recently received much attention. It mandated doubling the number of lay “people’s assessors” to take part in the judicial process in order to demonstrate the “democratic” nature of the courts. It also cryptically called for “deepening reform” of the court’s adjudication procedures, a veiled reference to the controversial topic of reforming the scope, powers and procedures of the court’s adjudication committee, which is widely seen as unduly and arbitrarily dominating court decision-making.
The second recent SPC document, specifically focused on “preventing unjust, false and wrongly decided cases,” was issued Nov. 21, shortly after the important decision of the third plenary session of the party’s 18th central committee. In a brief section on promoting the rule of law, the plenum decision emphasized protecting the people’s rights by “upholding the constitution and laws,” assuring independence and fairness in courts, introducing greater judicial transparency and boosting the judicial system to safeguard human rights and avoid false accusations and confessions induced by torture. These slogans were welcome symbols reflecting the party leadership’s continuing endorsement of the SPC’s struggle for court reform. The decision’s references to the constitution and judicial independence were especially useful in opposing an intense campaign by “leftist” ideologues to ban public and academic discussion of these topics.
The coast was now clear for the SPC’s most recent instructions, a long accumulation of the strictures laid down by preceding documents. Its most distinctive feature was an emphasis on “open trials” that “make courtroom hearings the center of the trial” so that “evidence is investigated in the courtroom, conviction and sentencing debated in the courtroom and the court’s judgment shaped in the courtroom.” With one exception, it mandated that evidence that has not been verified in court must not serve as a basis for conviction; only when in-court examination of evidence secretly obtained through “technical measures” might endanger relevant persons or “cause other serious consequences” could a court review it outside the courtroom.
The forthcoming trials of Xu Zhiyong and other recently persecuted human rights advocates, now the topic of fierce intra-party debate, will provide an early test of how the new emphasis on open trials will be applied in practice.
The SPC’s Nov. 21 document is also interesting for its mention of the courts’ relations with other institutions. With no exceptions, the courts are prohibited from jointly deciding cases together with the police and the procuracy. Yet, after again warning judges not to yield to local pressures, the document suggests that, “in significant, difficult or complicated cases,” they may invite local legislators, members of the local people’s consultative conference and other community representatives to observe the trial. The purpose presumably is to provide a desired popular check upon judicial conduct, but, like the duty of the procuracy to scrutinize judicial activity, it is a double-edged sword that expands the temptation for outsiders to interfere with the court’s independent decision-making.
Conclusion
Though it would be premature to draw conclusions regarding China’s newly launched effort to promote a distinctive type of independent judicial decision-making, it is not too early to make a few observations.
First, the Chinese judicial system remains dramatically different from those of any of the world’s liberal democracies. This includes the democracies of Northeast Asia that share China’s Confucian traditions but have more recently been importantly influenced by both continental European and Anglo-American models.
Second, and less discouraging, China’s vast population has increasingly voiced a demand not only for accuracy but also for fairness in the administration of justice as understood in terms of what many in the West would like to consider universal values. China’s new leadership has felt obligated to respond to this demand, despite its continuing and indeed expanding resort to repression. Thus it is seeking to boost popular confidence in the courts through emphasizing consistently reliable implementation of the due process-type procedural reforms increasingly found in Chinese legislation. This requires a judiciary capable of operating with a significant degree of independence from local authorities and other legally distorting influences.
Fortunately, most judges are likely to welcome this renewed emphasis upon judicial professionalism, and their efforts to implement it are buoyed by the active support of a rising group of lawyers seeking to hold the courts to strict compliance with law and procedural safeguards.
What are the chances that this ambitious, yet limited, campaign might succeed? Like the daunting objectives confronting the regime listed at the outset of this essay, it is unclear whether this new goal of a Chinese version of independent adjudication should be characterized as Promethean—that is, extremely challenging but feasible for a regime that has proved itself capable of extraordinary achievements—or Sisyphean.
China is a vast country with a huge population. The problems of effectively operating a national judicial system on such a scale are far greater than comparable ones in Japan, South Korea and Taiwan. Moreover, long before the advent of communism, local Chinese elites had developed the art of frustrating the plans and officials emanating from the capital. Their familiar motto was, “Heaven is high, and the emperor is far away!”
Nevertheless, since the end of the Cultural Revolution, Chinese legal modernizers have come a long way. China’s judicial personnel appear capable of implementing the recently articulated goal. The key question is whether the party’s highest leaders—surprisingly, Zhou was not made a Politburo member—are willing to give this goal a priority it has never before enjoyed and pay the political costs involved in attaining it.
Xi Jinping’s most recent speech, given on Jan. 7, 2014, to the central conference on political-legal work, reaffirmed his support for trial-level judicial independence and a new balance between the party and the courts as an important part of necessary political reforms. Xi also made clear that, unlike his predecessor, he will personally lead the political-legal system, thereby consolidating his power.
Almost a decade ago, the last reformer to occupy the SPC president’s chair, Xiao Yang, sought to enhance the independence of local courts from local authorities by raising the powers to appoint local judges and finance their courts to the central, or at least provincial, level. Those reforms, although begun, have yet to be completed. Will the new effort fare any better? Much will depend on Xi Jinping.
