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The academic community also shares part of responsibility for providing shoddy recommendations. Recently some Chinese scholars propose that announcement of judicial decisions on court, right before the litigants at the end of arguments, as effective means both for curbing judicial corruption (since it reduces the chance that the litigants can influence the judges’ decisions by bribery and personal relationship behind the scene) and improving trial efficiency (since it saves the time for deliberation). And the press reports are quick to applaud for the clean dockets of some courts by the end of each year. Of course, the judicial efficiency of the Chinese courts need be greatly enhanced, but that does not simply mean the increase in the numbers of cases that a judge tries per day.[111] The Chinese scholars are quick to learn the English idiom that ‘delayed justice is no justice’, but they seem to have forgot that mistaken ‘justice’ is no justice either! The emphasis on the speed of judicial decisions itself is dangerous since it may seriously undermine the quality of the decisions, which is by no means high as it currently stands. It is well recognized in the west that equity and speed of justice have always been a pair of contradictions,[112] but China is yet to overcome the ‘hopeless worldly optimism’ that Max Weber associates with the Chinese culture, which have in the recent decades created human tragedies of great scale.[113] Although parts of the current Chinese judicial process might be cut short without undermining equity, the emphasis on numbers at best misunderstood the western system and at worst could lead the on-going reform astray. Articles often cite how many cases an average American judge decide every year, but fail to note that the numbers are greatly inflated by overwhelming amount of small-claims cases such as parking violations and rent payment disputes, and that the Chinese counterparts can easily ‘get the numbers right’ once similar courts are established there (and indeed a few of such courts are being set up in major cities like Beijing). But that would simply miss the key aspect of the judicial reform.
Despite the apparent successes, then, a neutral diagnosis is still needed for the Chinese judicial reform.
2. Success or Failure? A Tentative Prognosis
The Chinese judicial reform contains many components that are likely to meet different degrees of success. Although almost all areas of the judicial reform are expected to encounter difficulties of various kinds, but some reform measures are more easily implemented than others. Here I distinguish three types of measures, designated by the variables discussed in Part I; the measures taken by the Chinese judicial reform may fall in any one of the categories or a combination of them. The first category is the ‘material’ variables, referring to the physical conditions, such as Xwc. The material variables are perhaps the easiest to improve if it is technically feasible, since it is unlikely to offend and thus invite opposition from any particular block of power holders. They will be improved immediately as long as the government is able and willing to do so. The second category is the ‘personal’ variables, referring to relatively pure personal quality of the judiciary, for example, those as measured by Xedu and Xtrain. This respect of the judicial reform is likely to illicit social consensus, but improving the variables could be difficult owning to their nature. The third and most important category is the ‘institutional’ and ‘cultural’ variables. For our purpose they include the most significant group of the variables identified in this paper, such as Xind and Xapr. They are also the most difficult to change because the improvement is likely to be resisted by some dominant political forces, which perceive change in the current institutional setting as adversely affecting their interest. Of course, these categories are by no means neat and clean, but rather interact with each other (for example, one way to improve the professional quality of the judiciary is to make the court institutionally attractive to the college graduates trained in law). And a few variables may defy single classification; Xmi and Xcor, for example, are as much personal as institutional or cultural. Nevertheless, the simple characterization offered here will still be helpful to the analysis of different aspects of the judicial reform.
First, The material measures are technically feasibly and are unlikely to encounter significant human resistance. Increasing the judges’ salaries and the funding necessary for carrying out investigations, improving their working conditions and providing them with trained assistants (Xwc) -- these measures can be accomplished as long as the material (particularly, financial) conditions are satisfied. Yet, although progress in this respect might come surely, it turns out to be exceedingly slow for a large number of courts located in the poor areas, which are seriously handicapped in providing judicial finance.[114] The situation in some areas might get aggravated owning to the economic reform, which has resulted in the shutting down of many state-owned enterprises, severely reducing the local tax income. Since even the Outline for judicial reform did not mention a word about helping out these local courts by the central government, we expect to see that the disparity in judicial quality will continue (or even enlarge) at the national scale. And, of course, money is obviously not the only issue. A higher salary and better working conditions do not necessarily improve the quality of judicial judgments; they may not even be effective in curtailing judicial corruption.[115] So other aspects of the reform must follow simultaneously, yet their success is even less guaranteed than the material improvements.
Second, the personal variable can be slow to change because some aspects of human endeavor are set by the law of nature, and it simply takes time to modify the current situation no matter how strongly humans wish to change. Improving the quality of the judicial personnel (Xprof), for example, is bound to be a long-term project, and cannot be accomplished alone by a government-initiated movement; it is often the case that the ‘software’ develops much more slowly than the ‘hardware’. As the old Chinese proverb says, ‘It takes ten years to grow a tree, a hundred years to establish a person’; it will take efforts of several generations for the Chinese judiciary to reach a level of professional competence comparable to their western counterparts, provided that everything else goes smoothly.[116] The Chinese government has attempted to speed up the change by introducing competition to the courtrooms, but as discussed above, the measures taken here seem to be misconceived at the first place and the effects are at best mixed. Probably the most ‘malleable’ variable that the reform can tamper with is the judicial training (Xtrain), to which the government has already devoted much effort. Yet post hoc training may have some inherent limits that it simply cannot transcend; to be a qualified judge one need not begin preparation in kindergarten, but it will be too late after he has grown up without the right kind of education.
Finally, there are aspects of the judicial reform that will follow even less certain paths since they depend on the interactions of various sections of human interests and the ability to dissolve or circumvent the major resistant forces. Of course, some technical (and in a sense ‘material’) reforms might be easier to accomplish, such as streamlining the judicial process and cleaning up bottlenecks, but these are also rather trivial and insignificant to the main purpose of the judicial reform.[117] The core tasks are much harder to accomplish. Switching to the vertical management style, with the central government controlling the purses of all courts nationwide, is likely to be resisted by the local governments and, even if it is fully implemented, it is still difficult to predict how much impact the measure will have on reducing local protectionism. One must remember that the judges still depend on the local congresses for their reappointments and promotions, and on the administrative power for funds and benefits. And even though the judges are made independent by name, they will still be subject to administrative and political control now made less invisible. The tangible incentive provided by Articles 27 and 28 of the Judges Law for good judicial performance reminds one of the traditional reward-punishment scheme designed for an ordinary bureaucracy. Indeed the competition mechanism introduced by the Outline might further reduce rather than enhance judicial independence. It is likely to instigate political battles among the judges, facilitate the Party’s paramount control over the judicial process, and pave the way toward building a new patron-client network within the courts. For one thing, in the examination of judicial performances, the evaluation of the party committee would count for 40 percent of the total score.[118] Politics still holds overwhelming discretionary power over the supposedly tribunals of justice.
3. Inherent Limits to Judicial Independence: Party Politics versus Courts and Rule of Law
The most direct and fundamental limit to the Chinese judicial reform is still its political system.[119] Political control of the judiciary has been a perennial feature of the CCP history; the working style of authorizing the party committee and secretary to approve the judicial decisions, and the Political and Legal Committee [Zhengfa Weiyuanhui] to settle disputes, had been established as early as during the Yan’an period.[120] The current Constitution, enacted in 1982, formally recognizes in its Foreword the leading role of the CCP; as the party was not mentioned elsewhere in the Constitution, the limit of its power remains undefined. On the other hand, the 1982 Constitution explicitly stipulates that ‘The People’s Courts independently exercise the judicial power according to the provisions of law, and are not to be interfered by administrative agencies, social organizations, and individuals’.[121] It seems that, to avoid logical contradiction, any judicial independence is to be interpreted within the contour of the political power of the party; that is, the courts are ‘independent’ only insofar as they deal with cases without adverse effects to the party, and are obliged to accept the party’s command as soon as the party’s interest is implicated. The latter is true whenever the case deals with any ‘political question’, as in the recent judgment on the appeal of the former Beijing major, Chen Xitong, who was sentenced to 16 years imprisonment for embezzlement. Although the SPC offered some legal reasoning,[122] it can be safely expected that the judgments of the lower courts was simply to be affirmed since Chen’s sentence was already politically decided. The same can be said about the case against the former vice chairman of the NPC Standing Committee, Cheng Kejie, who was sentenced to death for alleged embezzlement.[123] In this type of political judgments, the Chinese court has no alternative but to formally confirm what the Party has already decided. In fact, the Outline itself requires the judicial reform to follow the principle of the party leadership, along with principles of the ‘democratic dictatorship’ as the form of the state and the political institutions represented by the NPC (Para. 4). The official ‘point of departure’ [Chufadian] is always the ‘particular circumstances of the Chinese state’ [Guoqing], though ‘beneficial experiences’ of foreign courts and judicial management can be borrowed. In a high-level conference about the on-going judicial reform, the president of the SPC expressly turned down the possibility of pursuing the type of judicial independence in the western model of separation of powers, and reinstated the need for the party leadership and the ‘party control of [judicial] cadres’ [Dangguan Ganbu].[124]
The party can intervene a judicial decision in several ways.[125] First and most obvious, the president and vice presidents of any court are usually party members, who are subject to the party discipline. Since the president is held responsible for the whole court, the party can achieve effective control over the court through the presidential responsibility system.[126] Further, it is still common for the party secretary of the Political and Legal Committee, often the same person as the chief of the Public Security Bureau, to discipline the court president with the party principles. Finally, the party in fact is responsible for initiating and pushing forward all major political and legal reform activities. The most recent amendment on ‘rule of law’, for example, was first raised as a proposal in the CCP Charter during the 15th Party Congress before it was copied verbatim to the Constitution. Nor could the judicial reform be launched without approval of the major party leaders. Thus both the mobility and inertia of the Chinese judicial system depends crucially on the party. This brings serious question to the possibility of establishing a true independent judiciary in which individual judges are held ultimately responsible not to the political will, but to the law. After all, the administrative leadership and the trial committees are still the integral part of the court structure, through which the party can step in and supervise judicial judgments whenever the cases are deemed ‘important’, ‘complicated’ or ‘difficult’.
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