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An encouraging sign for (limited) legal reform

By Stanley Lubman, The Wall Street Journal

China’s new leadership has signaled that fundamental changes to the country’s legal system are not on the table. But a brief document, largely ignored in the English-speaking world until recently, suggests high-level support for limited but important reforms.

The document, published in Chinese on Lunar New Year’s Eve, contains instructions from President Xi Jinping on the carrying out of judicial reform. In keeping with past pronouncements, it reiterates the familiar insistence on the Communist Party’s “leading role,” and rejects Western notions of judicial independence and separation of powers.

But as China law expert Susan Finder noted recently on her blog, the instructions are noteworthy for offering powerful support for Zhou Qiang, the reform-minded president of the Supreme People’s Court.

Zhou began to speak out on the need for judicial reforms soon after he was promoted to his current position in March last. Legal reforms have been stalled since 2005 amid a growing obsession with “stability maintenance.” In the month following his ascendance to the nation’s top court, he said in a meeting with legal professionals that he was planning “to promote judicial fairness and enhance judicial credibility.” Other signs of possible change have appeared since then.

Zhou has pointed to wrongful convictions as a problem that argues for judicial independence. In an opinion issued in November 2013, the Court issued an opinion on “Completing Systems for Prevention of Wrongful Cases.”  It declared principles of criminal procedure that echoed recent revisions of the Criminal Procedure Code and emphasized adherence to “the principle of procedural justice” and “the principle of independent exercise of judicial power in accordance with law.” Also in November, the courts were ordered to increase the transparency of trials and sentences while the party’s Central Political-Legal Commission issued a decision “On Earnest Prevention of Miscarriages of Justice.” (Both documents are discussed in an earlier column.)

The involvement of the Political-Legal Commission, an agency that is superior to the Court in the entwined bureaucracies that rule the Party-State, indicates highest-level concern over the advancement of legal reform. Xi’s New Year’s Eve instructions further reflect this.

The instructions are brief, praising courts for carrying out reforms outlined during a Party conclave in November and urging them to “firmly uphold” the leadership of the Party. Xi also urges the courts to become more professional by building a “topnotch workforce,” to spread a favorable image of the judicial system and provide “strong judicial support for the overall deepening of reforms.” While little of what he said is new, the Monitor notes that it is unusual for a Party Secretary to issue instructions to the Supreme People’s Court and concludes that Xi did so to express his “support, praise, demands, and hopes” for Zhou Qiang and the court.

In a meeting of top court officials convened to discuss Xi’s instructions, Zhou Qiang capitalized on that perceived support. Saying Xi’s instructions should be “studied in depth at all levels,” Zhou led with the principle of upholding Party leadership while also emphasizing “the independent, impartial execution of judicial authority in accordance with the law” and rejecting law-related Western democratic principles. He then instructed the courts to “further promote judicial reform” and repeated the opening phrase referring to independence. The warning to avoid Western principles is sandwiched between two sentences on the importance of “independence” Chinese-style, which requires “regulating judicial power” and improving judicial protection of human rights.

More concretely, Zhou urged that problems of “serious financial management” of sub-provincial courts be addressed, subject to direction from Beijing. This may imply willingness to limit the current power of local governments to appoint judges and finance the courts. It may also suggest increased attention to reducing the influence of those governments on the outcomes of cases decided by the courts within their jurisdiction.

“Strengthening transparency” is a principle urged on the courts that must be used to “improve trial procedures.”   A vague endorsement then calls on support for “overall reforms” including economic reforms.  This could be read as encouragement of legislated reforms, such as a widely desired reform of land-use laws that would expand farmers’ rights to engage in transactions and would free them from the grasp of greedy cadres.

Finally, Zhou offered his thoughts on what Xi meant by building a better workforce. The effort, he said, means not only “imprinting loyalty to the Party, the people and the law,” but also includes the need to “professionalize the judicial workforce and the police system.” This means “refusing cases based on relationships, guanxi, and bribes” and supporting the campaigns to promote official austerity and “zero-tolerance” of corruption.

This high-level push for reform is encouraging, even if it is within limits set by opposition to Western democratic principles. While this expresses the need for continuing support of Party dominance, it might also be interpreted as an exploration of the boundaries of Party and local government leadership over courts and police. The Instructions express recognition of the need to control both.  Now it is necessary to await the elaboration of reforms before it will be possible to assess the impact of Xi Jinping’s instructions. 

2/25/2014