As China’s leaders meet to consider how to bring greater flexibility to the country’s tightly-managed legal system, scholars are pressing them to include the words “judicial independence” in formal party documents for the first time.
It’s a hot-button issue in a country that enshrines the ultimate authority of the party and has told judges to prioritize it along with the law. Leaders have avoided the phrase -- which evokes Western ideology -- even as they say they want a fair and independent exercise of judicial power.
President Xi Jinping has put legal reform at the top of his agenda, pledging governance “according to the law on every front,” and the Central Committee meeting starting today in Beijing will focus on the rule of law. Judicial independence should be on the agenda as defining the relationship between the party and the law is fundamental and unavoidable, the scholars say.
The phrase, which suggests the type of separation of powers between the state and judiciary that occurs in western nations that could potentially pose a challenge to the party’s paramount status, wasn’t mentioned in last year’s communique.
“That’s why they didn’t use it at the third plenum; it doesn’t really work to conduct judicial reforms in China through a western conceptual lens,” said Chen Weidong, a law professor at Renmin University in Beijing.
Most judges and prosecutors are party members, and they are appointed by the government or senior-party officials.
“If there is no proper explanation coming out of the session, anticipation would turn into frustration in a second,” said Ji Weidong, Dean of Shanghai Jiao Tong University’s KoGuan Law School, who said judicial independence is a prerequisite for rule of law.
China’s leadership should formally establish “judicial independence” as being central to the rule of law and the goal of reforms, as well as incorporating the concept of “constitutional rule” in governance, said Xu Xin, professor at the School of Law of the Beijing Institute of Technology.
“If these two principles cannot be established, the rest could only be small fixes and revisions that won’t solve the fundamental problems in the country’s legal system,” said Xu.
Embracing judicial independence would help the party by relieving the burden and sharing the responsibility for decisions, he said.
“How can the party have so much time and energy to be all over the place?” Xu said.
While the term is no longer off limits in public discussion, the party-owned Global Times newspaper warned in a June editorial that it’s as dangerous as “constitutionalism” another phrase it said shares the goal of changing China’s political system.
China’s constitution protects “the people’s democratic dictatorship” which cannot be replaced by a “rule of law” implying Western ideas of universal values, the Communist Party journal Red Flag said in an Oct. 11 commentary.
Guo Yushan, a co-founder of Beijing-based research center the Transition Institute, earlier this month became the latest rights activist to be detained on criminal charges of “provoking trouble.”
China is governed through its constitution, which details the government’s powers, and the Communist Party charter, which enshrines political power.
Legal reforms since Xi’s administration came to power in November 2012, include the abolition of labor camps and allowing citizens more grounds to sue the government. Last year’s plenum transfered financial and personnel authority over local courts to the provincial level, removing those judges from the influence of local party leaders.
“These measures carry the element of judicial independence and fit the Chinese national situation,” said Chen from Renmin University. While the implication is that the Supreme People’s Court should eventually control the personnel and finances of all of China’s courts, Chen said he had no idea how long that might take.
The scholars aren’t optimistic that the words judicial independence will make it to the official communique this year, and even if they do, implementation will be difficult.
“The party has come to see the use of law as a tool to more efficiently govern the state and society, but stressing the importance of rule of law isn’t equivalent to genuinely valuing rule of law,” said Xu from the Beijing Institute of Technology’s School of Law.