The courts in China are faced with an uphill battle in maintaining their independence at both an internal and external level. The Chinese judiciary’s close affiliation with the Party as well as the hierarchical nature of the court system has resulted in politicised decisions, and in turn, dilutes the court’s power to implement independent rulings.
The Court’s Relationship with the Party
The tenuous relationship that the Chinese legal system has with the rule of law severely impacts the independence of the judiciary.
Unlike the United States, the Chinese courts do not subscribe to the doctrine of precedent typically found common law jurisdictions. China’s judges play a more mechanical role in applying, rather than interpreting the law in keeping with their civil and socialist law principles. This is exemplified by the fact the court system is never entirely divorced from the Communist Party’s supervisory authority or its ideological narratives, which the government has consistently reiterated.
In 2006, Luo Gan, the leader of the Political-Legal Committee, now under the Central Leading Group of Comprehensively Deepening Reforms, reaffirmed the court’s commitment to the Chinese government through the Education on Socialist Rule of Law Theory.
In specific reference to the rule of law, Luo Gan, stated that it was the court’s duty to follow only the Party’s leadership and the “socialist rule of law”. This was immediately adopted by SPC, and disseminated throughout the Chinese legal system by vice-president Cao Jianming to reinforce the supremacy of the Party.
Article 9 of the Judges Law stipulates a requirement on judges to uphold the Constitution, thereby the leadership of the government. In reference to the Constitution, Article 126 states the courts are to exercise their power “independently” and without “interferences by administrative organs, public organizations or individuals”, while Article 128 outlines the SPC is concurrently responsible to the legislative body of China, the National People’s Congress, and Standing Committee. A value set out to guide the court’s independent conduct in decision making, while simultaneously being held to account by the legislature.
This has led to realized consequences in constraining government power with the refusal of courts willing to engage in politically sensitive cases. In 2004, the Guangxi High People’s Court came under scrutiny by legal scholars in their decision to arbitrarily ban thirteen types of disputes. The controversial element of this notice was many of these claims, based in PRC law, were as a direct result from poor government policy and mismanagement of public services in major employment areas.
Columbia University law professor, Benjamin Liebman describes the pressure on the courts to avoid ruling altogether on politically sensitive issues as a fundamental feature of their limited power in settling legal disputes concerning the government. In 2003, the Standing Committee of the Henan Provincial People’s Congress revoked an Intermediate People’s Court judge’s decision and removed him, when he found a provincial rule invalid as he deemed it conflicted with state law. Although eventually reinstated, the legislature has the power to influence and interfere with the court’s ability to curtail the government.
The Court’s Relationship with Themselves
The lack of internal independence, particularly with respect to the relationship between the higher and lower courts, further outlines the judiciary’s struggle for a well-defined independence.
In a general sense, the court system is split into four different levels. In descending order of power, the Supreme People’s Court, the High People’s Court, the Intermediary People’s Court and then to the Basic People’s Court. As per Article 127 of the Constitution, each lower court is subordinate to the respective higher court. The top-down nature of the Chinese court system creates an environment in which the lower courts have little power or incentive to diverge from the regulations passed down from their respective higher court. This is also due to the fact that it is still commonplace for the local Chinese government and judicial officials to supervise the selection of judges and court presidents.
Although the implementation of the Judges Law in 2001 raised the minimum standard significantly in order to qualify for appointment, according to a study conducted by China Court Web, it was estimated that 80% of judges were members of the CCP.
Examples of indicating the clear trend to appease the court superiors include the speeches of the president and vice-president of the SPC, which are published in the SPC Gazette. The purpose of these speeches is to provide opinions, declarations and provisions regarding the Chinese legal system over the past timeframe and for the future. In some respects, this is not dissimilar from a common law country as high courts will often provide clarification on past issues or opinions of the law.
However in this instance, the president of the SPC’s speech is commonly ideologically based and according to Wang Chenguang, a way for the NPC to swiftly implement policy amendments into judicial legitimacy. Also, there can often be interference in individual cases between courts as phone conversations between a higher and lower court can have a de facto binding influence on lower courts in deciding a case. This is an extremely unpopular method amongst Chinese legal scholars as it leaves considerable room for error. The parties are left to the skill of a lower court judge, describing a potentially intricate case over the phone, presumably without adequate representation of both claims but importantly, not allowing either party the right of appeal.
Although, there are some cases in which lower courts refuse to listen to a higher court such as the Lingao County Court of Hainan. Despite the SPC president, Xiao Yang, directly ordering the court to enforce a creditor’s right for a number of years to no avail, it is arguable why, without an extrinsically controversial or political motivation that limited government power, the SPC decided not to pursue further.
Examples such as these do provide some glimmer of hope for China’s judicial independence both from themselves and the authorities, however, bridges will still need to be crossed for the system to commit itself to starkly foreign legal values, notably being the rule of law.
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