Op-Eds


Reading between the lines on Chinese judicial reform

By Stanley Lubman, The Wall Street Journal

Of the many broken institutions in China calling out to be fixed as Beijing prepares to welcome a new generation of leaders, the country’s judicial system is among the most important. In an era of improved communication and increasing public scrutiny, the consistently poor performance of China’s courts, which are controlled by the Communist Party, threaten to seriously undermine the party’s legitimacy. The question is whether China’s leaders would ever consider loosening their grip on the judicial system enough to solve the problems that plague it.

 A recent government white paper on judicial reform hints that they might. Released earlier this month by the Information Office of China’s State Council (China’s cabinet), the 20-page document is devoted mostly to declaring that various institutions within the judicial system have been improved and that they are continuing to improve. But it begins and ends in ways that suggest new perspectives.

In its preface, the white paper tasks the judicial system to meet a high standard. “The judicial system is a major component of the political system, while judicial impartiality is a significant guarantee of social justice,” it says. adding that “due to the development of the socialist market economy, the comprehensive implementation of the rule of law, and the increasing demands of the public for justice, China’s judicial system urgently needs to be reformed, improve and developed.” The conclusion likewise makes a relatively bold statement, saying judicial reform “is regarded as an important part of China’s political system reform.”

The white paper is also interesting for what it doesn’t say.

Unlike previous Chinese government white papers on law, the Communist Party (CPC) is never mentioned in the latest document. Previous white papers on legal issues published in 2008 and 2011 both emphasized that reform is to be carried out “under the leadership of the CPC.”   This newest document instead celebrates the accomplishments of “China” not the CPC, while also invoking judicial reform as “an important part of China’s political system reform.”  Where did the party go and what does its omission signify?

Also missing from the white paper is any direct attack on the problems that need to be addressed, other than a vague reference to “defects and rigidity” in the judicial system.  Nothing is said about core problems, such as the lack of judicial independence or the legal culture of police, judges and prosecutors that lingers from the Maoist period and fosters widespread disregard of laws already in effect.

Lacking recommendations for next steps toward reform, the document is left to describe past reform measures and their current operation. In a section titled “Strengthening Human Rights Protection,” the paper enumerates revisions of the Criminal Procedure Law (CPL) in March 2011 that include provisions prohibiting self-incrimination, excluding illegally obtained evidence, and ensuring timely defense  of suspects and defendants.  A hopeful sign is the more recent adoption by the National People’s Congress on legislation intended to create consistency between the revised CPL and a number of laws adopted earlier.

These are all changes in legislation on paper, but they are impossible to judge in practice since the revised CPL doesn’t go into effect until next year. The existing gap between laws on paper and laws in practice was illustrated by a politically charged case, discussed in a column earlier this year, in which the various agencies of the judicial system cooperated in violating criminal procedure rules, including the use of torture, to secure convictions against people suspected of involvement of organized crime.  As the case unfolded, one defense lawyer was quoted as saying “The criminal defense system in China is near its doomsday.”

With the leadership transition approaching and officials in Beijing waiting for it to be carried out, the significance of the white paper can’t be foretold. Some advocates of reform have taken heart: Hu Shuli, the editor-in chief of the weekly magazine Caixin and a well-known and outspoken public intellectual, has recently celebrated the white paper as a signal for the strengthening of the rule of law. In an article she writes: “Following this upcoming congress, we should expect the central government to continue to propel economic, political, cultural and social reforms, in which judicial reform will play a crucial role.

Other advocates of reform are doubtful. Among them is Beijing University Law School professor He Weifang, who has recently urged that “judicial power” be treated “as a special kind of power, very different from executive or legislative power” and that efforts be undertaken  “to make judicial power to be able to operate independently.” The document, he says, “does not lay out a concrete path directing the future of legal reform of China. It is an attempt to praise the current leaders.”

The lack of forward-looking plans might reflect a lack of agreement among the leaders at this crucial time, while the reference to “political reform” and the deemphasizing of the party’s role in the judicial system keep open the possibility of more substantial change than the system has seen in recent years. For all it fails to say, this white paper does imply that the next leadership must continue to address legal reform, something it acknowledges is still a work in progress.  

10/28/2012