Is New Judicial Whitepaper Mere Whitewash?

China released its 2012 “White Paper on Judicial Reform” last week, in which it traces the history of and re-positions the government’s goals for reform. China Daily published the full text of the paper:

As early as in the 1980s, China started reforms in court trials and ensuring professionalism in judicature, focusing on enhancing the function of court trials, expanding the openness of trials, improving attorney defense functions, and training professional judges and procurators.

In 2004, China launched large-scale judicial reforms based on overall planning, deployment and implementation. Starting with issues that caused complaints from the public and the key links that hamper judicial justice, according to the demands of promoting judicial impartiality and strict enforcement of the law, and proceeding from the regular pattern and characteristics of judicial practice, China improved the structure of its judicial organs, division of judicial functions and system of judicial management, to establish a judicial system featuring clearly defined power and responsibilities, mutual collaboration and restraint, and highly efficient operation. Thereby, China’s judicial reform entered a phase of overall planning and advancing in an orderly way.

Since 2008, China has initiated a new round of judicial reform, and entered a stage of deepening in key areas and overall advancement. The reform proceeds from the demands of the public for justice, with safeguarding the people’s common interests as its fundamental task, promoting social harmony as the main principle and strengthening supervision and restraint of power as priority. China aims to tackle problems in the key links that hamper judicial justice and restrain judicial capability, remove existing barriers in the institutional setup and operational mechanism as well as provision of legal guarantee, and put forward the specific tasks for judicial reform in four aspects – optimizing the allocation of judicial functions and power, implementing the policy of balancing leniency and severity, building up the ranks of judicial workers, and ensuring judicial funding. Currently, the tasks of this round of judicial reform have been basically completed, as relevant laws have been amended and improved. As China is making continuous progress in economic and social development, its judicial reform is bound to advance further.

State media coverage has praised the paper, which emerged just weeks ahead of a major leadership turnover at the top of the Chinese Communist Party, touting specific accomplishments from lawyers’ rights to the strengthening of grassroots judicial organs and China’s “prudent” application of the death penalty. Some legal experts, however, told the South China Morning Post that the paper doesn’t “serve as convincing proof” that China’s legal system is headed in the right direction:

They said the paper merely made it appear that leaders had done a good job, before some of them stepped down in the leadership reshuffle.

“The paper does not lay out a concrete path directing the future of legal reform of China. It is an attempt to praise the current leaders,” said Professor He Weifang, who teaches law at Peking University.

He added that, as the legal system still operated under the party central committee’s Political and Legislative Affairs Committee, it lacked the apparatus to implement reforms.

Another lawyer, Wang Cailiang of the All China Lawyers Association, told Voice of America that observers must now focus on how new laws are implemented:

“We can’t just look at what they say,” Wang said. “We need to look at what they will do and how they will do it.”

Wang, who specializes in representing villagers whose land is being sized by developers without proper compensation, says that the white paper fails to address the core issue of judiciary independence.

“For the courts and the procurator and the judicial authorities to stand up independently, they need to break away from their relation of dependency with the government,” he said. “Otherwise, any talk of a just and fair judiciary is fruitless.”

Wang says that in his line of work, citizens’ rights and interests are often trampled upon because of the governmental interference with the courts’ work.

For The Diplomat, Carl Minzer writes that the new white paper marks “a substantial departure” from the paper published last year and suspects that “policy shifts are in the cards”:

The big question is: why is this being issued now?

The 2011 white paper was issued mere days after the conclusion of the fall Party plenum last year, presumably reflecting some degree of elite consensus with regard to the direction of internal legal and political reform (at that point, clearly moving in a more hardline direction). In contrast, the 2012 paper has been released in the weeks leading up to one of the most uncertain and unclear leadership transitions that China has faced in decades.

Is this merely a tactical play by an individual leader seeking to put the issue of judicial reform on the table? Or is it a sign that top Party authorities have actually reached broad consensus with regard to relaunching legal reform in the wake of the November leadership transition?

See also previous CDT coverage of legal reform in China.

October 15, 2012 8:02 PM
Posted By:
Categories: Law, Politics