|
Judicial corruption complicates the way in which the independent variables interact. If the overall level of the judges’ moral integrity (Xmi) is high, for example, then improving judicial independence (Xapr, Xwc, and Xind) will truly improve judicial fairness; if the moral integrity level is low, however, improving judicial independence may actually reduce judicial fairness (since the corrupted judiciary would be running without external control), unless variously penal laws can effectively keep judicial corruption in check (that is, Xcor is high). In this way moral integrity and penal laws against corruption compliment each other. To achieve judicial fairness, mere independence is not enough; rather, judicial independence, moral integrity, and the legal environment that checks judicial corruption interact in a complicated ‘non-linear’ fashion.[17]
To sum up, a fair and just judicial system will result from a highly educated and well trained body of individual judges distinguished by high moral integrity, from effectiveness of penal law in controlling judicial corruption, and from judicial independence as a result of the judicial appointments and dismissals made strictly according to law, a high socio-economic status and sufficient operational funding as guaranteed by law, and the individual responsibility of the judges for delivering judicial opinions without political, administrative, and social interference. Improvement of a judicial system toward judicial fairness requires improvements in all the ‘independent variables’ discussed above, and the breakdown of any conditions listed above is likely to result in failures in the judicial system.
Viewed in this model, what is the current condition of the Chinese judiciary?
II. The Judicial Syndrome in China
China has been a country of many ironies that continue to perplex a thoughtful outsider. Particularly perplexing is the disparity between the words and the reality. Historically China has purported to be a unified state under the control of a centralized government, which in effect admits no limit in its power; yet a closer look reveals a picture of terribly fragmented governing structure, particularly in the administration of justice. The current regime also purports to be a ‘socialist state’, where social justice is supposedly the primary goal; yet its court system, commonly supposed to be the vanguard of justice, has been woefully inadequate for rectifying and deterring any injustice. Although the judicial system bears the name of ‘people’ whom it is supposed to serve, the problems as outlined here has long prevented the courts from effectively serving the social interest. A Chinese judge is supposed to enjoy many rights, including an independent institutional status,[18] but in practice s/he is far from independence. These problems interact together to form what I call the Chinese ‘judicial syndrome’, which includes four related aspects: the low professional quality and entrance requirements of the Chinese judges (Xprof), the lack of adequate funding from the central government and the reliance on the local government (Xwc), which has led to blatant local protectionism (related to Xapr), the inefficient structural settings within the courts that emphasizes administrative control at the expense of judicial independence of individual judges (Xind), and the receptivity of the Chinese judiciary to various forms of corruption (Xmi and Xcor). The present paper cannot quantitatively measure the relevant judicial variables, but it will present the qualitative conditions of the Chinese judiciary below.
1. The Professional Quality Problem: The Conditions of the Chinese Judges
Rule of law means that the public power is carried out without arbitrary personal influences, but it does not mean to neglect the personal quality (Xprof) of those who occupy the positions of making, interpreting and executing laws. Indeed it would be almost a truism to state that the prerequisite for bringing rule of law as a particular social and political ideal to reality is the willingness and ability of the public power-holders to submit to such an ideal.[19] Thus, before talking about China’s judicial reform, we must have some idea about the people who make up the judicial system. Here we see the first symptom of the Chinese judicial syndrome, a necessary result of the combining influences of the history, the tradition, and the institutions at the personal level.
For the most part of the Chinese history, the judiciary has been a neglected branch of the government,[20] subordinate to and often directly exercised by the executive officer. At the level of local government, the ‘judge’ was the very executive head of the county; whenever his authority was in question, he was the judge of his own cause (subject, of course, to review by his superiors). Such institutional arrangement, in which the same person executed and judged the law, has been regarded in the west as an anathema to liberty and justice since Montesquieu. At the highest level in the central government, the judiciary, with various names at different dynasties, was maintained as a separate function, and was subordinate to the highest executive officer.[21] In either case judicial independence was next to non-existent.
This situation remained unchanged for the most part of the current regime. The revolution, claimed to be unprecedented in history, did turn many things on their heads, but the shadow of tradition was most conspicuous in the judicial model of the new China. Indeed, it is fair to say that revolution brought retrogression rather than progression to the judicial integrity of the Chinese courts. In the various versions of the People’s Republic constitutions, the judiciary has been a separate branch, but it is consistently treated as an ordinary state functionary fulfilling the role of ‘proletarian dictatorship’, in parallel to the other functionaries that are primarily executive in nature, notably the public security [Gong’an] bureau and the procurator’s [Jiancha] office. A directive of the central government in 1950 stated that ‘The people’s judicial work is just like the people’s army and the people’s police; it is one of the important tools of the people’s government.’[22] Thus, for a long time, the Chinese judiciary was viewed to fulfill the same function as the police and the armies -- the ‘knife’s handle’ [Daobazi] of the proletarian dictatorship.[23] It was hardly surprising that, until very recently, a Chinese judge looked so similar to a policeman or a military officer, wearing army uniform with starred epaulets.[24] The judicial reform in 1952 further consolidated the party leadership over the judiciary. By 1957 the party control was under serious attack within the Chinese judicial circle. The result was not the reduction of political control, but the purge of 6,000 ‘old law personnel’ [Jiufa Renyuan] , who had constituted the pool of extremely scarce Chinese judicial resource. In the civil division of the Shanghai second middle-level court, for example, eight among twenty judges were declared ‘rightists’ [Youpai].[25] The vacancies were filled by the revolutionary activists, who had rarely acquired legal or, as a matter of fact, any academic training.
Since a ‘judge’ in China meant hardly different from an ordinary cadre in the bureaucratic echelon under the party leadership, he was supposed to perform a variety of public functions: he might be executing a court order, in which case he is acting equivalently as an American sheriff, except that the order was often made by the same judge executing it; he might be gathering evidences on his own initiative for a criminal prosecution, in which case he is acting as a civil law magistrate; he might be actively engaging in settlements of civil disputes or administrative compensations, where he plays the role of an arbitrator; he might even be traveling in the countryside during an episode of ‘popularizing legal education’ [Pufa Jiaoyu], explaining to peasants the party policy in a particular legal area and earnestly seeking cases for summary judgments.[26] Thus, sitting in the court, hearing cases, and delivering legal decisions are only one of the many roles -- and perhaps not even an important role -- a Chinese judge is supposed to play.
So who are the ‘judges’ in China? This question implies two related questions: first, how is the judge (or the judicial function) defined; second, who may become a judge in China. A ‘judge’ in the west is a specialized and privileged position, requiring special knowledge and qualifications for deciding a legal dispute. In comparison a Chinese ‘judge’ is a much broader definition. Someone who does decide cases is of course called a judge, but so are those who merely execute the court orders or manage internal court affairs. The trial function is commonly exercised by the ‘trial chief’ [Shenpanzhang] and ‘trial members’ [Shenpanyuan] under the guidance of the presidents of the entire court and its particular divisions. The latter’s function is to assure that every legal judgment is politically ‘correct’ and socially acceptable. A Chinese ‘chief judge’ (that is, the head of the court) may never try a single case by himself, yet he is still respectably called a ‘judge’. In fact anyone who worked in a court and dealt with some paper works might be referred to as a judge. As a result, China has a large body of ‘judges’ (over 290,000, a number that greatly exceeds the number of lawyers -- indeed a peculiar Chinese phenomenon),[27] but only a portion of them really judge any cases.[28]
Consistent with the broad definition, the entry qualification (say, Xedu) for becoming a judge is abnormally low. It used to be the case that almost anyone can get into a court and become a ‘judge’. The current judicial body was the result of rapid expansion after 1979, in response to the need for regulating the rising social conflicts during the economic reform. The judicial personnel were largely ‘borrowed’ from social and political organizations previously having little to do with works of judicial nature. A significant portion of the ‘judges’ was made up of the army veterans, who were assigned ‘political and legal work’ [Zhengfa Gongzuo] at the time of their retiring from the service without any prior legal training. Some of them have become the court presidents or the division chiefs, the real power-holders controlling the judicial decision-making.[29] The appointments were made by the party leaders mainly according to their political loyalty rather than professional qualification, and anyone deemed suitable to working in the ‘party and political institutions’ [Dangzheng Jiguan] are thought to fit the judicial work as well.[30] Likewise, factory workers and high school graduates can have their jobs assigned to the court and become ‘judges’. Court secretaries [Shujiyuan] can also become judges within a few years after they are promoted to ‘assistant judges’ [Zhuli Shenpanyuan], without having to go through formal academic training and extensive legal practices.[31] Many appointments of the court personnel are still made on the basis of personal friendship or family kinship [Renren Weiqin]; if the direct appointment of one’s own relative may seem too obviously inadequate, then two friendly courts can exchange their desired appointees. Measured against the professional yardstick, then, the quality of the large Chinese judiciary is necessarily low. According to a recent survey, only 5 percent of the judges nationwide have earned undergraduate [Benke] degree, and only 25 among a thousand judges have earned graduate degrees.[32] It was reported that, in Beijing, where the education level of the judges is among the highest in the nation, 75 percent of its 45,000 judges have obtained degrees from ‘specialized colleges’ [Dazhuan], but 60 percent of these degrees were issued from televised education and non-professional [Yeyu] colleges; and among the small 10 percent of the judges who have obtained undergraduate degrees, it was unclear what percentage of them were formally educated in law.[33] Nor is the Chinese court an attractive place for people of high qualities. Few graduates from the schools specialized in law and politics [Zhengfa Yuanxiao] are willing to work in the courts or the procurator’s office: between 1984 and 1998, the judicial organizations absorbed only 20 percent of the almost 2000 graduates from these colleges; to the graduates holding advanced degrees, the court is simply not the place to be.[34] And recent attempts of the SPC at open recruitment have failed to attract lawyers and legal scholars to this supposedly highest place of legal practice.[35]
Although definitions alone seldom make substantive differences, the broad category of Chinese judges does carry practical consequences. For one thing, it is difficult to formally distinguish the ‘judges’ exercising different functions and treat them differently in status and salaries. Dividing the limited financial resource by a large number of ‘judges’, the average per capita remuneration is necessarily low. Thus, a large number, low remuneration, and low professional quality have formed a stable equilibrium in the Chinese judicial circle. The first step toward a more effective judicial system is to break the vicious cycle by reducing the scope (and thus the number) of the Chinese judges and improving the social and economic status of this more selective group.[36] The key to the success of the judicial reform is to make the courts a more attractive place for the young talents. As an editor points out sharply, a good institution is perhaps the necessary condition for the judicial reform, but it is certainly not sufficient; indeed, before institutional reforms can take effect, the personal quality problem must be resolved.[37] As this paper seeks to show, problems at the personal and institutional levels are inextricably linked to each other, and neither can be resolved without the simultaneous resolution of the other.
|
