Washington’s Dangerous New Consensus on China
Don’t Start Another Cold War
On January 14, Zhou Qiang, the chief justice of China’s Supreme People’s Court, rejected judicial independence in a speech to jurists in Beijing. China “should not fall into the trap of the West’s 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 people’s sense of security and satisfaction [and] build a … just and standardized legal environment.”
To some observers, Beijing’s recent efforts to professionalize the judiciary have suggested that China was moving toward enshrining the rule of law. Zhou’s 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 Beijing’s 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. Beijing’s goal is to establish a robust legal system that can effectively govern China’s political and social life without ever challenging the Communist Party’s core policies and ideology.
RULE BY LAW
Over the last 30 years, China’s modernization and the speed with which its officials have enriched themselves have outpaced the country’s 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.”
China’s 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 freedoms—but in China, the limits can seem to overshadow the rights themselves. What is more, China’s courts lack the power of judicial review that most constitutional systems enshrine: Its judges cannot declare the government’s 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 party’s 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 from—and paid better than—clerks 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 People’s 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 courts—a 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 China’s 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 party’s 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 party’s acknowledgment that some sort of barrier between judges and politicians is necessary for the public to keep its faith in the legal system.
THE CENTER HOLDS
For many observers, Beijing’s 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 main—and in many cases, the only—route 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 People’s 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 system’s 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 People’s 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 identity—a sign of judicial willingness to move the law ahead without the explicit blessing of the party. This is the role China’s courts must build upon if the country’s current judicial standard—rule by law—is to have a chance of eventually turning into rule of law.