By Stanley Lubman, The Wall Street Journal
Can legal reform and Communist Party control coexist in a way that will benefit Chinese governance and society?
This is the question that now confronts the country in the wake of
the annual meeting of the National People’s Congress, which just
concluded on Sunday. Chinese leaders said throughout the proceedings
that they were committed to “law reform,” yet the annual report
submitted to the legislature by the Supreme People’s Court last week
made it clear that those reforms will be limited according the party’s
interests. “We must unify the three tasks of maintaining the leadership
of the party, treating the people as masters and ruling the country
according to law, unswervingly walking the path of socialist rule of law
with Chinese characteristics,” the court’s chief judge Zhou Qiang said
while delivering the report in the Great Hall of the People.
What remains unclear is whether Chinese leaders intend to make
meaningful changes within that framework to raise the quality of Chinese
justice or are merely paying lip-service to justice as they continue
the old patterns of authoritarian control.
A rise in speech monitoring and harsh ideological rhetoric under Chinese President Xi Jinping
does not give reason for optimism. Last month, to give just one of many
examples, Chinese Internet companies deleted 60,000 user accounts as
part of a government effort to implement a real-name Internet that
free-speech advocates say could have a chilling effect.
Meanwhile, Western ideas are increasingly coming under attack from
officials like the vice-chairman of China’s official union, who recently
warned of the dangers “hostile foreign forces” pose to the country’s
Western influence is considered anathema in legal reform as well,
according to current rhetoric. Speaking at a meeting of the party
committee of the Supreme People’s Court last month, top judge Zhou
Qiang, a supposed reformer, emphasized the need to reject Western
notions of “judicial independence” and “separation of powers,” and
denounced “the West’s erroneous” thought.”
The bombast is harsher than it has been in years. Behind these
slogans, however, the party has endorsed some positive steps toward
professionalization of the courts, adherence to procedural justice and
increased autonomy from party and government agencies.
While political orthodoxy is being trumpeted, a different perspective
has emerged in the court’s program for improving the judicial system.
The Supreme People’s Court recently issued an outline of its new five-year plan
(2014-2018) for “deepening reform” of the courts. The outline calls
for “optimizing the internal allocation of functions and duties of the
people’s courts, perfecting the operating mechanism of judicial powers,
and ensuring the people’s courts to independently and fairly exercise
their judicial powers according to laws and regulations.”
One of the key provisions focuses on making the open trial the center
of the judicial process, in which evidence must be “verified and
challenged…facts affirmed…defense opinions…expressed… and grounds for
judgment formed in the courtroom.” Witnesses must appear in court (in
contrast to the current reliance on written statements). In addition
there are calls for “implementing lawyers’ rights at trial…to ask
questions, examine evidence and debate.” The report also targets the
liability of “leading cadres” for interfering in specific cases.
Another surprising echo of a push for judicial reform even recalls
the Maoist celebrations of socialist heroes: Recent reports have hailed
as a model leader of judicial reform Zou Bihua, a Shanghai judge who
recently died of a heart attack while working tirelessly in efforts to
implement reform in that city. The praise for Zou mirrored that lavished
on the soldier Lei Feng, an icon celebrated since the early 1960’s as selflessly devoted to the party.
The modern Lei Fengs are struggling against a tide of official corruption. Vice Premier Li Keqiang minced no words when he said recently that “systematic,
institutional and structural problems have become ‘tigers in the road’
holding up development. The ‘tigers’ are local and national officials
who profit from corruption.”
Professor He Jiahong, who teaches about criminal law and
anti-corruption investigation techniques at Renmin University, provided a
candid view of one of the major, deep-seated obstacles to legal
reform: the mentalities and habits of police, prosecutors and judges
who see themselves as arms of the state. “It will take a long time” to resolve that problem, he told an interviewer.
Those three agencies that comprise the “political-legal system” still
strongly bear the imprint of the Maoist period, and it will take
considerable re-education of personnel over a sustained period of time
to change their mindsets. The values of the judges and officials in the
system could begin to reflect the reform outline issued by the Supreme
People’s Court only if party and local government involvement in
specific case decisions doesn’t expand.
At this time there is no current movement that would join forces to
accelerate law reform, but pressures from different sectors of the
economy and society might impel the leadership to increase the pace –
working within the party — of improving the organization and operation
of the courts. Judicial reform now seems to be inching forward, but
meaningful progress remains a distant goal.
Stanley Lubman, a long-time specialist on Chinese law, is a
Distinguished Lecturer in Residence at the University of California,
Berkeley, School of Law. He is the author of “Bird in a Cage: Legal Reform in China After Mao” (Stanford University Press, 1999) and editor of “The Evolution of Law Reform in China: An Uncertain Path” (Elgar, 2012).