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2. Three Problems Tied Together: Money, Institutional Dependence, and Local Protectionism
It is not hard to imagine from above that, in general, the Chinese courts are relatively poor, partly reflected in low Xwc. Not only the judges personally are poorly rewarded, but the working conditions of many courts are truly primitive. In some remote areas, the court can hardly maintain its outer image dignified enough to be a ‘court’.[38] The presidents of the courts have been nicknamed ‘Mr. Public Relation’ or, more scathingly, ‘beggars carrying the scale (of justice)’.[39] The funding problem is exacerbated from the perspective of the functions that Chinese judges are expected to perform. Following the Continental model, a Chinese judge is supposed to undertake independent investigation, often in areas outside his jurisdiction, if he finds the available evidence insufficient to reach a justified decision. [40] Maintaining this type of inquisitive courts is naturally more expensive than the American or British courts, where judges strike the evidential balances without having to leave the courtrooms. In China, however, the limited funds allocated for the judiciary often prevent the judges from fulfilling their official functions, and force them to get the jobs done by using mechanisms both legally and morally dubious, thus contributing a significant part to judicial corruption (more below). It has been common for a Chinese court to solicit various types of financial endorsements not defined by law and for the judges to commingle with the litigants in their field trips, during which the litigants would pay for the judges’ personal expenses. The limitation of judicial funds has also made a substantial part of court decisions empty announcements, since the Chinese courts are responsible for enforcing their own orders,[41] some of which involve enforcements in other jurisdictions and thus would incur additional expenses that the courts cannot afford. By the end of 1997, there are over 2 million court decisions awaiting enforcement. The lack of judicial resources has seriously threatened the judicial independence, undermined the effectiveness of law, and cast doubts on the quality of justice.
A more direct threat to judicial independence is the way in which the judicial funds are distributed. Ironically, the People’s Republic purports to be a unified central state, but at least in one important respect it is terribly fragmented, and the situation is made even worse by the on-going economic reform. Following the national implementation of the financial self-responsibility (Chengbao) system in the rural areas, the scheme of ‘eating by separate stoves’ [Fenzhao Chifan] has also been promulgated among the over 3000 Chinese courts.[42] Until very recently all local courts, from the lowest ‘basic-level courts’ [Jiceng Renmin Fayuan] in counties and city districts to the high courts [Gaoji Renmin Fayuan] located in the provincial capitals, are financially dependent on their local bosses, the parallel local governments. The judges’ salary and the funds for court operations come mostly from the local government budgets and are subject to the threat of reduction whenever the court decisions adversely affect the local interest. Just like the American school tax cases,[43] where leaving the public school finance entirely to the local property tax created significant regional inequality, leaving the court finance to local governments has also created regional disparity among judges of the same ranks in the salary, working conditions, housing and welfare, and funds for carrying out judicial investigations. Particularly, the courts in the poor areas are obliged to seek income and funding through a variety of means, which may seriously compromise their independent status. Thus, although devolution of the central power to the local responsibility did bring vitality to the economic reform, in judicial administration it seems to have created more serious problems than it has solved.
More directly, the local People’s Congress (hereinafter ‘LPC’) and Government control the selections and promotions of the court personnel (low Xapr). According to Article 11 of the Judges Law, the presidents of the various levels of local courts are elected and dismissed by the LPC at the same level, and the vice presidents, the presidents of the divisions, and ordinary judges are appointed and dismissed by the corresponding standing committee of the LPC upon recommendation of the court president. It seems that these provisions will stay valid for an indefinite period of time despite the judicial reform, as they highlight the ‘Chinese character’ of the political structure (theoretically) centered on the People’s Congresses. As a result, a judge failing to carry out instructions of the local leaders can be remonstrated or even removed.[44] The local Congress may even summon the leaders of a court to discuss specific cases together with the litigants and hand down the decision, for which the court is to be held responsible. In the Anyue county of Sichuan province, for example, the standing committee of the LPC would ‘sit together’ with the vice president of the court, the chief of the division, and the local defendant to figure out how to ‘draft the judicial decision’.[45] The People’s Congress might not always be able to assert its own independence against the Party or the executive departments of the government, but it can surely be quite effective in interfering with the judicial process.
Therefore, unable to shield the judges from material pressures exerted by the local government, China’s current institutional arrangement has failed to protect the most basic aspects of judicial independence. The problem is most obvious in administrative litigations, where the defendants are administrative agencies that are likely to be holding pieces of the judicial pork; an unfriendly decision may very well trigger the denial of salary raise and funding, housing and welfare, the means of transportation, and other personal or institutional benefits. Partly for this reason the administrative cases are few on the whole (only 1.5 percent of the total number of cases in 1996, a small amount compared to the civil and economic cases), and the rate of ‘voluntary withdrawal’ [Chesu] has been consistently high.[46] A controlled judiciary can hardly be expected to be independent and act impartially in the interest of law. Indeed the supposedly unified judicial system in China has become the ‘courts of local governments’ in the sense that they naturally incline to act on behalf of the local interest at the expense of the uniform application of law. It is not uncommon that, in a dispute involving litigants of different localities, the judge would distort the obvious interpretation of law or ignore the preponderant evidence in order to decide in favor of the litigant in his own jurisdiction. The following case, which has aroused national attention, is but a typical illustration of such phenomenon.
In Beihai of Guangdong province, a woman fell from her motorcycle at a sharp left turn, found bleeding unconsciously on the ground. Liu Qiuhai, a representative of the LPC in a neighboring city, happened to pass by and see the scene. He and the driver of his van and a few pedestrians helped to pull the injured to a local hospital, where she received treatment till she recovered. Liu left before her recovery without asking for reward, but he was surprised to find an array of penalties waiting for him. A month later, when he passed by the same spot with the same van, he was stopped by a road police, a friend of the woman’s brother-in-law, who informed him that he had been charged with committing ‘hit-and-run’ and confiscated his vehicle. The police action apparently violated the administrative procedure. But when Liu and his driver initiated administrative litigation in the city court against the police action, the charge was summarily dismissed and the legality of the police action sustained. Liu and the driver of the van were then sued by the self-claimed ‘victim’ in Beihai for criminal and civil liabilities. In a curious opinion, the district court dismissed the charge against individual parties, but found the driver’s employer liable for the plaintiff’s losses. When a Guangzhou-based outspoken newspaper, South Weekend News [Nanfang Zhoumo], reported the event,[47] it was sued for libel by half a dozen parties: the injured woman and her brother-in-law involved in the event, the policeman, and the transportation police branch of the city public security bureau, all seeking enormous sums of damages because the report allegedly harmed their reputation. And the city court found the press liable for all charges. The decision was sharply contested by many legal scholars and practitioners, and the case has been appealed to the higher courts. While the final decision is pending, the Beihai example made it obvious that the local courts cannot be trusted to administer impartial justices whenever ‘outsiders’ are involved.[48]
3. The Structural Problems of the Courts：Lack of Personal Independence and Responsibility
As already discussed, the Chinese court used to be viewed as an organization akin to other administration organizations; the ‘judicial system’, including the courts and the procurator’s offices, is seen as a part of the ‘party and political organs’, similar to a party committee or a local executive office. And so was the style of its administration, indicating a low Xind. Once a case was opened in the court, it would be circulating among half a dozen internal sections, each giving a summary decision (which has to be summary since each section is to go through all cases).[49] Partly owning to the low professional quality of the judges and the need to reduce judicial errors, the final decision was not made by individual judges, but by a ‘trial committee’ [Shenpan Weiyuanhui]. The hearing judges would report the facts of the case and their tentative decision to this committee to get its approval. And to guarantee ‘political correctness’, the decision of the committee must also be approved by the head of the division and then the president of the court. A common decision would be discussed by people at many different levels: a panel of judges who actually tried the case, the trial committee (which usually did not try the case), the committee of the division to which the case belonged, and the administrative heads of the court, who had (and still have) the power to remand the case to the trial committee if they disagreed with the conclusion. The majority of the decision-makers involved in this formidable process neither saw the litigants nor heard their arguments, and had at best an indirect knowledge of the facts. Hence the ‘separation of trial and decision’ [Shenpan Fenli], in the sense those who tried the case could not decide, and the real decision-maker did not try the case. Such a procedure has not only reduced judicial efficiency and resources,[50] but also made it more likely that the litigants could succeed in affecting the judicial decision somewhere in the chain process through the ‘back door’ [Houmen] -- through their personal relationships with the acquaintance inside the court.
Of course, the most pernicious effect of this style of judicial administration is that it removes the personal responsibility from the judges. A judge became little more than a bureaucratic clerk, whose decision would depend on layers of approvals within the power pyramid in order to take legal effect. And a dependent judge is surely an irresponsible judge. It has been common for an ordinary Chinese judge to avoid sensitive problems, and refer them to the ‘leaders’ [Lingdao] -- the heads of the court and its particular divisions, who are in a sense ‘the judge of the judges’[51] -- or if the latter cannot decide, to the higher courts. As it is commonly said, ‘whoever has a higher authority, whoever’s words count’. The result is that the judge -- if he can still be called as such -- is obliged by his self-interest to obey ranks and status rather than the voice of reason and law; otherwise he merely puts her career at risk and must be prepared to suffer from penalties for his disobedience. Conversely, the previous system would enable a shrewd judge to use the trial committee as a shield for his own invidious judgments; through misleading and biased report of facts (which is rarely if ever published), he could successfully foist a biased decision upon the committee as the formal decision-maker, and stay away from any culpability.[52] Last but not least, although the LPC appoints and removes the judges, the head of the court has the power, pursuant to Article 11 of the Judges Law, to appoint and remove ‘assistant judges, who actually perform the judge’s functions.[53] Owing a favor to the head, these people are usually the ‘president’s men’, who tend to pay more heed to the order of their patron than the command of law.
4. Judicial Corruption: Constraints to the Judicial Reform
It has been easy to blame the Chinese judiciary for its lack of independence. Yet judicial independence presupposes a minimum degree of professional and moral integrity (Xmi) on part of the judiciary itself, for independence necessarily implies abolition of some forms of external control, which may otherwise be used to deter the self-seeking behavior. To be sure, despite the institutional handicaps, China does not lack upright and competent judges. But the worldwide experience suggests that, although a society may tolerate occasional corruptions in an ordinary bureaucracy, the standard for probity is especially high for the judicial office. The long-standing neglect of the need for this special requirement has made the Chinese judiciary as a whole far below the world standard. As many have sensibly argued, the Chinese courts seem to be corrupted enough even when they are supposedly under close scrutiny, further independence can only make things worse. Can the Chinese society afford an independent judiciary and trust it to run by itself?
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