February 2, 2017 ChinaLaw

Judicial Reform in China

How Progress Serves the Party
By Rebecca Liao

On January 14, Zhou Qiang, the chief justice of Chinas Supreme Peoples Court, rejected
judicial independence in a speech to jurists in Beijing. China should not fall into the trap of
the Wests erroneous thinking and the independence of the judiciary, Zhou said, and Chinese
courts must resolutely resist constitutional democracy and the separation of powers. For the
many observers who viewed Zhou as a reformer, his comments seemed like a betrayal. This
is truly a statement that wrecks the nation and harms the people, He Weifang, a law professor
at Beijing University and a popular liberal reformist, wrote in an online post.

Unlike in Western countries, where the separation of powers means that the judiciary should
refrain from commenting on political matters, in China, there are no such barriers: The
Communist Party controls all aspects of government. Nevertheless, legal reform has been a
key theme for the party in recent years. A few days before Zhou made his remarks, Chinese
President Xi Jinping stressed that national political and legal organs should safeguard
national security and social stability, improve the credibility of the judiciary, enhance peoples
sense of security and satisfaction [and] build a just and standardized legal environment.

To some observers, Beijings recent efforts to professionalize the judiciary have suggested
that China was moving toward enshrining the rule of law. Zhous remarks, together with his
comment last February that China would not match Western notions of judicial independence
and the separation of powers, have demonstrated that Beijings reform agenda is not quite so
straightforward. Judicial independence remains off-limits for discussion, but the Chinese
judiciary and legal professions are nevertheless developing at a steady pace. Beijings goal is
to establish a robust legal system that can effectively govern Chinas political and social life
without ever challenging the Communist Partys core policies and ideology.

CHINA DAILY / REUTERS

Zhou Qiang, the head of China's Supreme People's Court, in Beijing, March 2016.

RULE BY LAW

Over the last 30 years, Chinas modernization and the speed with which its officials have
enriched themselves have outpaced the countrys gradual efforts to establish a robust judiciary
and legal norms. That is one reason the party has prioritized judicial reform in recent years. In
October 2014, as part of Xi's anticorruption campaign, officials declared at the Fourth Plenum
of the 18th Central Committee that they would focus on comprehensively advancing the rule
of law. The party pledged to strip local officials of some of their control over the courts in
their jurisdictions. It would attempt to make the judicial system more transparent and
accountable by making court actions and government decrees easier to access online. The
government would streamline China's overburdened administrative courts, and it would
restructure judicial processes so cases could be resolved more quickly. It would also increase
the qualifications and evaluation criteria for legal professionals. (At the time of the plenum,
judges were not required to have law degrees or significant legal training, and there was no
standardized process for reviewing their performance.)

All of these reforms were useful at a technical level. But the reason the party backed its
announcement with the force of a high-level meeting was ideological: The measures, party
officials noted, were part of an effort to develop socialism with Chinese characteristics
under which the country should be ruled in line with the Constitution.

Chinas Constitution provides for the freedoms of speech, the press, and association, among
others. It also calls for judicial independence. Of course, even liberal democracies limit the
exercise of such constitutionally guaranteed freedomsbut in China, the limits can seem to
overshadow the rights themselves. What is more, Chinas courts lack the power of judicial
review that most constitutional systems enshrine: Its judges cannot declare the governments
acts or laws invalid on constitutional grounds, and their interpretations of the constitution do
not have the force of law.

By declaring its intention to adhere to the Constitution, the party sent a signal: Even if Beijing
did not yet accept the Western notion of rule of law, it was willing to strive for what might be
called rule by law, or governance according to the letter of the law as executed by the
judiciary. And by couching the reforms as an acknowledgment that bad behavior perpetrated
or condoned by the party delegitimizes its position of power, the partys commitments at the
plenum also suggested that the legal system would be governed by such values as justice and
fairness in addition to the letter of the law. That was enough to reassure some liberal observers
that constitutionalism might one day become the legal norm in China.

CLEANING UP THE COURTS

Over the last three years, China has sought to develop its legal system according to the
mandate of the Fourth Plenum. A number of the measures Beijing has taken since 2014 have
aimed to depoliticize local courts. The government has organized judicial personnel according
to a more sophisticated hierarchy, so that judges are selected by standard criteria that
emphasize legal experience and education and so that they are distinguished fromand paid
better thanclerks and paralegals. It has rolled out a pilot program to review judges
performance that hands evaluations to higher levels of government that are removed from
local circumstances and therefore less invested in the outcomes of cases. The court system has
also begun to provide judges with the protection they need to ward off the threat of violence
from those disgruntled with unfavorable rulings. And to reduce the influence of local
politicians on judges, Beijing has declared that national authorities will determine the funding
for courts below the provincial level.

Other reforms have sought to make the legal system more efficient. In February 2015, the
Supreme Peoples Court set up two pilot circuit courts in Shenyang and Shenzhen to help
manage Chinese courts growing caseload; if they are successful, more circuit courts will
follow. To provide the expertise needed to try China's increasing number of intellectual-
property cases, in late 2014 and early 2015, the government established intellectual-property
courts in Beijing, Guangzhou, and Shanghai. The state has streamlined the procedures for
filing cases to ensure that plaintiffs do not clog the courts with separate cases that would be
more efficiently tried together, and that such cases move through the system more quickly.
There is also discussion among policymakers about creating so-called cross-administrative
district courtsa move that should lighten the burden on local courts, with the additional
benefit of moving cases against local governments to jurisdictions beyond their purview.

The apparent tension between Chinas rejection of judicial independence and its work to
remove the influence of local officials on courts is best explained by the fact that Beijing
believes the national government should not be subject to judicial oversight. Where corruption
or injustice exists, the national authorities attribute it to rogue local officials. That is why the
party issued regulations last March that require judges to keep records of their
communications with all parties who are not court personnel and to report the interference of
local officials in their cases to the partys local political committee or the next level of courts
every three months. Party leaders at all levels, however, can still provide their views to judges
on specific cases, and they can also broadcast their opinions in the media. Whether the
regulations introduced in recent years will lead to less judicial interference by political
officials remains to be seen, but the rules certainly represent the partys acknowledgment that
some sort of barrier between judges and politicians is necessary for the public to keep its faith
in the legal system.

Jason Lee / REUTERS

Paramilitary police officers standing guard in Beijing, October 2014.

THE CENTER HOLDS

For many observers, Beijings recent procedural reforms are a step in the right direction, but
they remain unsatisfying because the party retains ultimate control. In democratic states, the
courts serve as a supplemental venue for justice when the rest of the system fails to provide it.
In China, the courts are the mainand in many cases, the onlyroute by which citizens can
argue for their rights and property in a system in which most other venues for popular
representation are closed. If China subordinates the courts' role as a source of recourse for its
citizens, it will ultimately not be able to form an institutional environment and social
atmosphere that respects the judiciary, supports the judiciary, and trusts the judiciary, in the
words of a white paper the Supreme Peoples Court issued last February. Chinese citizens are
aware that the courts cannot challenge the party line, but the judiciary will have no integrity,
and therefore no legitimacy, if it cannot provide a check on the systems abuses.

If there is cause for optimism, it is that the courts are typically the first to confront social
issues of first impression. In other words, courts are the main venue in which citizens can
litigate matters that the central party has not yet directly addressed. That will likely remain the
case in the coming years. To meet the demand for legal representation, the number of lawyers
in China has doubled over the last decade, and they can now connect directly to their clients
through sophisticated online platforms.
In 2014, Chinese courts revised more than 1,300 criminal decisions to correct wrongful
judgments. In some cases, including in the wrongful conviction and execution of an 18-year-
old named Hugjiltu from Inner Mongolia on charges of rape and murder, the Supreme
Peoples Court ordered a retrial. Perhaps more famous was the case of Nie Shubin, a 20-year-
old from Hebei who was likewise convicted of and executed for rape and murder. Both were
exonerated (in 2014 and 2016, respectively) and their families will receive compensation for
their deaths. And although no anti-discrimination laws are on the books, a Chinese court
recently ruled that a transgender man had been unfairly fired from his job for dressing to
reflect his gender identitya sign of judicial willingness to move the law ahead without the
explicit blessing of the party. This is the role Chinas courts must build upon if the countrys
current judicial standardrule by lawis to have a chance of eventually turning into rule of
law.