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Xi Jinping promised legal reform in China, but forget about judicial independence

By Zheping Huang

China’s top judge is one of the country’s most vocal critics of judicial independence.

On Jan. 14, Zhou Qiang, president of the Supreme People’s Court (SPC), delivered a speech calling on his colleagues to resist Western ideologies that threaten the leadership of the Communist Party, including constitutional democracy, separation of powers, and judicial independence, according to state media reports (link in Chinese). The 55-year-old called judicial independence a Western “trap,” and said Chinese courts must “dare to pull out the sword” to combat the erroneous Western notion and other false ideas that could undermine China’s judiciary system.

While this would not be the first time (link in Chinese) a high-ranking official has criticized judicial independence in China, Zhou’s comments are more urgent and ominous than previous occasions. President Xi Jinping has made state security a top priority and has ordered all organs of the state to fall in line (link in Chinese), including law enforcement bodies. Part of Xi’s campaign is to paint unwelcome ideas like judicial independence as Western constructs that threaten the very stability of the Chinese state.

Yet Xi pledged his commitment to legal reform in the early days of his reign. The party will ”construct a rule-of-law country,” he promised in a communique released in November 2013, through the establishment of “a supervision system that properly separates regional government and the judiciary below the provincial level.” China’s legal reform must ”guarantee the independent and fair exercise of the courts’ judicial powers,” said the SPC’s five-year plan released in 2015.

This contradiction reflects the complex relationship between the party and the legal system. On the one hand, Xi has positioned himself as a champion of the rule of law, in an attempt, some argue, to justify his wide-ranging anti-corruption campaign and reduce resistance to economic reform at local levels. On the other hand, he’s made it clear that legal reform can never be allowed to challenge the party’s authority.

“Both in theory and practice, Chinese courts and judges have to obey the leadership of the party… Particularly in politically sensitive cases, the judges have to follow instructions from the CPLC,” says Willy Lam, an adjunct professor at the Chinese University of Hong Kong who analyzes mainland politics. The CPLC, or the Central Political and Legal Affairs Commission, oversees all legal enforcement agencies.

“The denial of judicial independence means that Xi’s legal reform is just for show,” Lam says.

Harking back to Mao

Zhou’s most recent pronouncement on judicial independence has invited unprecedented pushback from some Chinese legal scholars. He Weifang, an outspoken law professor at Peking University, wrote on Weibo, China’s version of Twitter: “No matter what country we are in, if there’s no independent judiciary, extrajudicial intervention will be a common scene… This will eventually lead to rampant injustice and rebellion.” He went on to say that undermining judicial independence is “turning back the wheel of history.” (The post was deleted but compiled with others by the China Digital Times, which monitors Weibo comments.)

Undermining judicial independence is “turning back the wheel of history.”

Suggesting that Zhou’s comments are like going back in time is no exaggeration: The attacks under Xi on judicial independence have not happened since the era of chairman Mao Zedong.

One early attack came in January 2015, when Zhang Chunxian, then party chief of the Xinjiang Uighur Autonomous Region in the nation’s far west, warned against the notion of judicial independence in the top state mouthpiece People’s Daily (link in Chinese): “Our rule of law is not a rule of law with ‘separation of powers’—it cannot travel the same road as the West’s ‘judicial independence’ and ‘judicial neutrality.'” His comments shocked the legal sector as the party had not warned against the idea of judicial independence in decades.

The following month Zhou similarly said that Chinese courts must disregard false Western notions, including separation of powers and judicial independence, ahead of the SPC’s reform plan.

Zhang’s article was the first open shoutout against judicial independence in the post-Mao era, according to Qian Gang, director of the China Media Project at the University of Hong Kong’s journalism school. Mao blacklisted the concept, viewing courts as tools for political movements. In two versions of the Chinese constitution in the 1970s, the word “independent” was absent from any mention of the power of courts and prosecutors, Qian noted.

But after China opened up its economy to the world in the 1980s, Qian said, the word “independent” appeared in the new constitution, and the concept of “judicial independence” was revived in state media reports. As late as 2011, then Chinese premier Wen Jiabao even mentioned in a publicly reported seminar that the key to China’s rule of law is to “guarantee judicial independence and impartiality.”

“Who exactly has handed down a death sentence to the concept of judicial independence?” Qian asked, saying it’s impossible to know the answer. But without official recognition of the idea, he argued, “all efforts at judicial reform in China can only become wasted energy.”

A compromised independence

Beijing has conducted a comprehensive campaign in recent years to vilify Western values, targeting everything from NGOs to university textbooks. In the process it’s replaced supposed Western concepts that it deems incompatible with its political system with its own terms. For example, the phrase “constitutional democracy” has been supplanted by the idea of “governing in accord with the constitution,” which Xi invented in 2012.

The same thing is happening to “judicial independence.” As Zhou railed against the Western notion, the SPC also published a series of articles on its Weibo page (link in Chinese) to explain that while China guarantees the courts the right to “exercise judicial power independently in accordance with law,” as stated in Article 126 of the constitution, the concept is totally different from the West’s idea of judicial independence.

Chinese courts enjoy independent judicial rights only under the party’s leadership, the SPC notes.

Chinese courts are chosen and overseen by the National People’s Congress, China’s top legislative body and widely viewed as a rubber-stamping body. The notion of judicial independence, the SPC noted, is embodied in the American concept of separation of powers, in which the legislative, executive, and judicial branches operate independently.

The SPC warned that those who are advocating for “judicial independence” in China might have their own political agendas to threaten the ruling regime. It cited the peaceful evolution theory raised by former US secretary of state John Foster Dulles during the Cold War. The theory is understood by Beijing as an American conspiracy to overturn socialist regimes by spreading Western ideas.

The SPC concluded that judicial rights are “relative” in China as courts must ultimately obey the party, while in the West the notion is an “absolute” one.

Legal scholars are not pinning high hopes on China’s judicial reform, which is mostly being considered with regards to cases that are not politically sensitive, says Stanley Lubman, a long-time specialist on Chinese law.

In the meantime, China’s flawed criminal process, marked by “pervasive neglect of the rights of defendants,” is likely to be reformed regardless of any possible political significance of any specific case, he says. Almost all accused are found guilty (paywall) in China.

“I would expect technical reforms to continue to progress—ones without any type of political implications,” adds Susan Finder, a Hong Kong-based legal scholar. “Part of the reforms are aimed at greater autonomy, but not independence.”

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