Following condemnation of “Western ‘constitutional democracy,’ ‘separation of powers,’ ‘judicial independence’ and other harmful ideas” by China’s top judge, and renewed criticism of the country’s legal system after the reported torture of detained rights lawyers, Rebecca Liao reviews China’s recent judicial reforms at Foreign Affairs and explains how these changes serve the Party:
To some observers, Beijing’s recent efforts to professionalize the judiciary have suggested that China was moving toward enshrining the rule of law. Zhou’s remarks, together with his comment last February that China would not match Western notions of judicial independence and the separation of powers, have demonstrated that Beijing’s reform agenda is not quite so straightforward. Judicial independence remains off-limits for discussion, but the Chinese judiciary and legal professions are nevertheless developing at a steady pace. Beijing’s goal is to establish a robust legal system that can effectively govern China’s political and social life without ever challenging the Communist Party’s core policies and ideology.
[…] The apparent tension between China’s rejection of judicial independence and its work to remove the influence of local officials on courts is best explained by the fact that Beijing believes the national government should not be subject to judicial oversight. Where corruption or injustice exists, the national authorities attribute it to rogue local officials. That is why the party issued regulations last March that require judges to keep records of their communications with all parties who are not court personnel and to report the interference of local officials in their cases to the party’s local political committee or the next level of courts every three months. Party leaders at all levels, however, can still provide their views to judges on specific cases, and they can also broadcast their opinions in the media. Whether the regulations introduced in recent years will lead to less judicial interference by political officials remains to be seen, but the rules certainly represent the party’s acknowledgment that some sort of barrier between judges and politicians is necessary for the public to keep its faith in the legal system. [Source]
The view that “the national government should not be subject to judicial oversight” appears to resonate in Donald Trump’s White House. Last weekend, Supreme People’s Court justice He Fan denounced Trump on WeChat as an “enemy of the rule of law” and a “villain with no dignity” following the president’s Twitter attack on a “so-called judge” who ruled against his executive order on immigration. Trump has since continued his campaign against judicial oversight both in the courts and on social media, while his own Supreme Court nominee Neil Gorsuch has reportedly described his tweets as “disheartening” and “demoralizing.”
At The New York Times on Tuesday, Michael Forsythe wrote that He’s condemnation of Trump is less surprising than it might appear:
The notion of a Chinese jurist remarking on the danger he believes Mr. Trump poses to the separation of powers may seem, at first blush, to smack of hypocrisy. In China, courts are firmly under the command of the Communist Party. Last month, the chief justice publicly condemned the notion of judicial independence, warning judges not to fall into the “trap” of “Western” ideology.
But the harsh public face presented last month by the chief justice, Zhou Qiang, obscures what is happening on his watch. Judges like Mr. He admire the American legal system and study it to improve China’s rules, such as how to handle plea bargains or what to do with evidence obtained illegally, said Susan Finder, an American scholar who publishes the Supreme People’s Court Monitor, a blog that focuses on China’s top court.
Ms. Finder said that Judge He was an avowed “Scotus junkie” who translates books about the Supreme Court of the United States and works on the court’s judicial reform committee. Works that have been translated by Judge He include “Making Our Democracy Work,” by Justice Stephen G. Breyer, and “Becoming Justice Blackmun,” by Linda Greenhouse, about former Justice Harry A. Blackmun.
[…] Judge He, who could not be reached for comment, may be using Mr. Trump’s assault on the independence of America’s judiciary to safely and indirectly level some criticism against China’s own system. [Source]
Finder also discussed He’s comments on Twitter:
On the contrary, bcse he works in #Chinese system he knows importance of rule of law.
— Susan Finder (@SPCmonitor) February 7, 2017
there are more like him than you would think
— Susan Finder (@SPCmonitor) February 7, 2017
unlikely, big interest among Chinese judges in #SCOTUS, many surprising interactions/training sessions w' US federal courts
— Susan Finder (@SPCmonitor) February 7, 2017
She also highlighted a 2015 post on her Supreme People’s Court Monitor blog, on China’s selective borrowing from foreign legal systems and the widespread attention paid in Chinese legal circles to a translation of U.S. Supreme Court Chief Justice John Roberts’ 2014 year-end report.
Meanwhile, as Australia appears poised to ratify an extradition treaty with China, Human Rights Watch’s Sophie Richardson asked whether the current state of China’s justice system could justify such a step. The problems involved were previously discussed last September after Canada agreed to hold talks towards a similar agreement.
[…] Canberra would do well to consider recent legal developments in China before extending such a vote of confidence and adopting the treaty. In mid-January, China’s top judge publicly attacked the concept of judicial independence, a wake-up call for those who still have doubts as to whether China’s legal system is independent of the Chinese Communist Party. In late January, news broke that human rights lawyers who had been forcibly disappeared for more than a year have been badly tortured, one to the point of mental breakdown. The month wrapped up with a billionaire close to China’s leadership being abducted from a luxury hotel in Hong Kong, a special administrative region that has a separate legal system, and taken to the mainland.
An honest account of China’s judicial system needs to acknowledge the following: that it chronically denies people basic fair trial rights, even in routine criminal cases. That defendants face ill-treatment and torture – despite policies prohibiting such treatment –with little hope of redress. That Chinese security forces tracking down Chinese citizens suspected of corruption who have fled abroad do so without the permission of other jurisdictions, including Australia. And despite decades of calls for reform both within China and internationally, the government has still not aligned its key criminal laws and policies with international human rights standards, and instead has adopted more abusive laws. [Source]
