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This paper does not systematically analyze the rational incentives that set the Chinese judicial reform in motion; it might be legitimate to assume that good will for social justice is still present among the Chinese legal community and some political power-holders.[127] Since the judicial reform is initiated by the party itself, however, it is inherently limited by the party’s own imperatives. The goal of the judicial reform is ostensibly to make the judiciary independent so that it can decide cases fairly and efficiently. Yet as soon as a judicial judgment touches the nerve of the party, political power is likely to contest the efficacy of the judicial judgment. Throughout the Chinese history the winner in this contention, if it ever arises at all, is always the political power. Thus it is perhaps impractical to expect that the current judicial reform, ambitious as it is, will make the Chinese judiciary truly independent by the western standard. Even if the on-going judicial reform is successful otherwise, it will still be limited by the ultimate political bottom-line: a party that is essentially above the law.
So, is the judicial reform likely to succeed in China? This paper seeks to answer this question by analyzing the current political, legal, and social conditions. As the paper shows, the prospect is a mixed one, and changes with the fluctuating political climate in China. While Jiang Zemin did promise in one occasion a degree of judicial autonomy, the phrase was quickly qualified to exclude the possibility of confusing with the western notion of the separation of powers. Indeed the Outline itself warns against any ‘deviation’ from the party leadership. The recent public campaign against the Falungong sect further raise doubts about the credibility of the party’s avowed effort in creating a government under rule of law rather than rule of man.
On the other hand, especially with the recent accession to the World Trade Organization, China is unmistakably merging with the rest of the world. And so must its legal system in general and the judicial system in particular. Only an independent and competent judiciary is capable of sustaining the long-term social and economic progress, which ultimately provides political legitimacy to the current government. The future of China in the new millennium critically hinges on the fate of the judicial reform: while its success might prove to be the first step toward the end of one-party dictatorship and the beginning of a relatively free, self-governed, and prosperous civil society, its failure may well portend the overall degradation of the Chinese living environment by jeopardizing the key elements necessary for carrying out a successful social reform -- among others, basic order and stability, the control of official corruption, continuing economic growth and technological innovation. It remains to be seen whether the judicial reform in China can successfully resolve the contradictions between the political imperatives and the socioeconomic needs.
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* Qianfan Zhang obtained his Ph.D. in Government from University of Texas at Austin (1999). He is currently teaching comparative constitutional law and administrative law at Nanjing University Law School in China. He has published several books and numerous articles in this area, including Market Economy and Legal Regulations (1998), Where the Soul of Freedom Lies: The American Constitution and Political Institutions (2000), and a two-volume treatise The Constitutional Systems in the West (2000/2001). He currently serves as the Chief Editor of the faculty journal, Nanjing University Law Review. This paper grows out of a research project supported by the Foundation for Philosophy and Social Science in Jiangsu Province, China. Parts of the paper have been delivered at the Annual Meeting of American Political Science Association, Washington D.C., 1-2 September 2000, and at ‘China Facing the New Millennium: The Challenge of Globalization’, an international symposium organized by the Association of Chinese Professors of Social Sciences and held in Kennesaw State University, Georgia, 27-29 October 2000. The author thanks the participants in the panels of both conferences and two anonymous referees for their helpful comments. He is responsible, of course, for all remaining errors.
Cai Dingjian, History and Evolution: The Historical Course of the Construction of the Legal System of New China (Beijing: China University of Politics and Law Press, 1999), pp. 179-197.
In China the People’s Procurator (Jianchayuan) is thought to constitute part of the judicial system . This definition seems to be broader than the common western definition, where the term ‘judicial system’ is usually referred only to the courts. The western definition is used here, unless specified otherwise. The ongoing ‘judicial reform’ focuses mostly on the reform of the Chinese courts and judges, even though it occasionally may also touch the Procurator’s offices.
As the paper will show below, mere numbers do not really tell much; indeed they might serve as negative rather than positive indicators. One problem is that the Chinese definition of ‘judges’ is much broader than the western definition, so that the reform has to deal with so many ‘judges’ with low professional quality.
For a review of the contribution of the non-government sectors (the ‘NGOs’) to the Chinese rule of law, see C. David Lee, ‘Legal Reform in China: A Role for Nongovernmental Organizations’, Yale Journal of International Law, 25, (2000), p. 363. For example, the Center for Judicial Studies at Beijing University Law School, headed by Professor He Weifang, has been quite successful in pushing for the judicial reform.
The overwhelming majority of the NPC supported the amendment. For a review of the amendment process, see Qiao Xiaoyang, ‘About the Background, Process, Principles, Content, and Significance of the Recent Amendment’ , Chinese Legal Studies , 1999 (2), pp. 3-8. For a discussion of its significance, see ‘Correspondences on the Problem of the Constitutional Amendment’ , Studies in Law , 1999 (3), pp. 147-156.
For the achievements and limitations of the Chinese legal reform, of which the judicial reform is a part, see Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press), 1999; Pitman Potter, ed., Domestic Law Reforms in Post-Mao China (Armonk, N.Y.: M.E. Sharpe), 1994; Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the People''s Republic of China’, Berkeley Journal of International Law, 19, (2001), p. 161.
The recent progress in this area is the experiments with ‘right to silence’ (Chenmoquan, or more literally, ‘zero oral confession’, Lingkougong), first initiated by a local procurator office of Fushun city in Liaoning province. See reports on South Weekend News , (7 & 21 September 2000), and China Youth News , (3 January 2001). The protective provisions, expected to abate the widespread torture and coercion in criminal prosecutions, have not been made into law and are limited to a few types of cases during criminal investigation (rather than judicial trial process).
Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the People''s Republic of China’, pp. 191-198; Pitman Potter, ‘The Administrative Litigation Law of the PRC: Judicial Review and Bureaucratic Reform’, in Pitman Potter, Domestic Law Reforms in Post-Mao China, pp. 270-304.
For a discussion of the existing judicial problems in China and the reform measures necessary to resolving these problems, see various contributions to a research conference organized by the CASS Institute of Legal Studies on Governing the State according to Law and the Reform of the Judicial Institution , a summary of which is published on Studies in Law , 1999 (4), pp. 151-160.
Gong Depei, ‘The Phenomenon of Judicial Partiality Must be Eliminated’ , People’s Court Daily , (28 April 2000).
Xinhua Daily, (25 October 1999, B1).
The two basic goals, justice and efficiency, are often found to contradict each other. The Chinese scholars have learned to quote the oft-quoted British motto: ‘A delayed justice is no justice’, but may have ignored that speedy erroneous decision-making is no efficiency either. The tension between judicial efficiency and fairness will not be discussed in detail, except in reference to a problem in the judicial reform (see Part IV).
Here I assume that the law, written or ‘unwritten’ (e.g. legalized customs and case decisions), is reasonably clear and the facts are known. This may be a problematic assumption, especially given the breadth and vagueness of the ordinary Chinese legislations, though such a problem need not concern us here. See Sylvia Ostry, ‘China and the WTO: The Transparency Issue’, UCLA Journal of International Law & Foreign Affair, 3, (1998), p. 1.
For a discussion of similar factors, see Stanley Lubman, ‘Bird in a Cage: Chinese Law Reform After Twenty Years’, Journal of International Law and Business, 20, (2000), pp. 394-398; Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the People''s Republic of China’, pp. 214-217.
The morality element here does not refer to a commitment to specific substantive moral theory, but the general professional morality that a public office-holder is to fulfill the official duty and any expectation commonly presumed for taking the office.
Efforts and intelligence (which can be measured by IQ) may also matter here, but omitted for simplicity. Education can catch a part though certainly not all of the difference these factors might make to the professional competence.
In a simplistic linear regression model, the relationship between the dependent and independent variables discussed thus far can be expressed by the following equation (the coefficients and the constant term are ignored):
Yj = Xedu + Xtrain + (Xapr + Xwc + Xind ) (Xmi + Xcor)
Article 126 of the Constitution provides that the Chinese courts have ‘the judicial power according to the provisions of law, and are not to be interfered by administrative agencies, social organizations, individuals’. Article 8 of the Judges Law goes even further: a Chinese judge is entitled to ‘(1) the power and working condition for carrying out the judge’s professional responsibility; (2) trial of cases according to law, free from the interference of administrative agencies, social organizations and individual persons; (3) freedom from dismissal, demotion, retirement or penalties without the cause and procedure determined by law’. For the distinction between the Chinese understanding of judicial independence embodied in the court as a collective entity and the western independence of individual judges, see Andrew Nathan, China’s Transition (Columbia University Press, 1997), p. 239.
As Mencius puts famously: ‘virtue alone is insufficient for ruling; mere laws cannot carry themselves into practice’ (Mencius, 4A: 1, Benjamin I. Schwartz, trans., The World of Thought in Ancient China (Cambridge: Harvard University Press, 1985), pp. 322-323. For the revitalization of the notion of Renzhi (‘rule of man’, which I think is a serious misnomer for the meaning it is supposed to convey) among the Chinese legal scholars, see Su Li, ‘Taking Rule of Man Seriously’ , Journal of East-China Institute of Law and Politics , 1998 (1), pp. 8-13.
There arguably are exceptions to this categorical statement. The legendary figure, Gao Yao, seemed to enjoy a high status owning to his ability of deciding cases fairly. See ‘The Counsels of Gao Yao’, in The Book of History ; for an English translation see Clae Waltham, Shu Ching: A modernized edition of the translations of James Legge (Chicago: Henry Regnery Co, 1971), p. 28. Legends remain legends, however, and cannot substitute for reality. The most famous judge was Lord Bao , who did exist in history. Sometimes called Bao Qingtian (‘Blue sky’, referring to his heavenly integrity that enabled him to rectify all grievances and injustices caused to the common people), he was made known to the ordinary folk by popular theatric performances.
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