China's Courts From The Top Down
This being the China Law Blog, I always get a bit irritated when another blogger beats me to a China legal story. I get even more irritated though when that blogger does such a good job with it that I have nothing left to say and, believe me, as a lawyer, I usually know how to get in the last word.
Jeremiah over at Jottings from the Granite Studio just did a great post on a New York Times article on a Chinese politburo official's speech warning against the Westernization of China's courts. The post is entitled, "Luo Gan on the judiciary: 'The correct political stand is where the party stands,'" and it talk about how the communist party's dominance over China's courts and might both advance and impede the party's power:
The CCP faces a similar decision. Solving China's gravest threats--corruption, pollution, economic inequality, predatory development patterns--requires the increased accountability of local, provincial and central officials. But to make officials accountable to stakeholders is dependent on the kinds of reforms that leaves the CCP vulnerable to attacks on its legitimacy and authority. A court in which a farmer can sue a corporation for damages due to a polluting factory is also one in which a farmer might try to sue the local CCP bigwig who approved the factory. A court that is free to prosecute the malfeasance of a mayor might be tempted to take on the venality of a governor.
I have nothing further to say.
Well, that is not quite true. For those interested in reading more on China's court system, I suggest the following CLB posts on the issue:
Comments (20)
Read through and enter the discussion by using the form at the endJoseph Wang - February 5, 2007 9:31 AM
I have quite a bit to say on this. I happen to think that the New York Times quite badly summarized what Luo Gan actually said, and a lot of his quotes were taken very much out of context, and I've posted some translations as well as a link to the original article on my blog.
For example if you just look at the whole paragraph where that quote on the "correct political stand" came from you get a vastly different view on what he meant. The entire sentence that he used was
[quote]
Governing authorities should conform to party policy: this means the correction execution of the law, and unifying party leadership with rule of law, to seriously and fairly implement the law, and to unify the will of the party and with the will of the people.
[/quote]
The same goes true when you look at the quote on "foreign forces." Again if you look at the whole paragraph of the speech, Luo Gan is saying something vastly different. Essentially he is criticizing the party for not paying enough attention to legal work thereby allowing foreign forces to highlight failures in the Chinese legal system.
Joseph Wang - February 5, 2007 9:33 AM
Something that I'd be interested in doing is to have someone translate the whole speech and then annotate it. The impression I got in reading the entire speech is vastly different than the one that the New York Times portrays. The interesting thing is that Luo Gan at no time actually talks directly about the issue of judicial independence or even about the courts in general.
China Law Blog - February 5, 2007 9:44 AM
Mr. Wang --
You raise some very valid points. Tone on something like this can be critical. It can be substance. I will ask Steve Dickinson of our Shanghai office to read it for himself and give me his overall view.
This is the problem inherent with translations. I am glad you brought this up.
Hui Mao - February 6, 2007 3:08 AM
Joseph is right, the quotes are very much taken out of context. It's a very long speech that touched on a lot of issues and problems facing China today. It included sections on protecting the rights and interests of the common people, strengthening enforcement of IP and environmental laws, ensuring true equality before the law, raising the public awareness of the law and legal means to protect their rights, and many other wide ranging topics.
Of particular interest is the section about the guiding principles for the law enforcement/judicial system in which Luo mentioned things like strengthening checks and balances, performing the duties of the judicial system in an independent manner and according to law, implementing the separation of responsibilities and the mutual checks and balances between executive and judicial branches, subjecting the judicial system to public monitoring and using openness to ensuring fairness. This doesn't sound much like a warning "against independence of courts" to me.
Hui Mao - February 6, 2007 3:09 AM
The section of the speech that I mentioned in the previous comment is copied below:
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Ken Wedding - February 6, 2007 6:22 AM
Thanks for pointing out another interpretation. As a non-expert and an illiterate in Chinese, I'm dependent on translations and analysis for teaching material about China, and textbooks cannot provide all that's needed. I think the NY Times is usually trustworthy, but I still wish for a Ross Terrill on the scene.
China Law Blog - February 6, 2007 10:33 AM
Hui Mao --
Me neither. Thanks for the comment.
China Law Blog - February 6, 2007 10:34 AM
Dr. Wedding --
Thanks for checking in. You and me both.
BTW, I am a fan of your blog.
Jeremiah - February 6, 2007 6:43 PM
Thanks to Mr. Wang and to Hui Mao for their digging into the original text of the speech. I haven't had time to read the whole text of the speech (I can't seem to access Mr. Wang's site from Tianjin though I'm sure I can find the text somewhere online) but I wish to do so as soon as possible. Looking at the selection kindly produced by Hui Mao, I do see the reference to "wishing to establish the equally important concepts of the independent exercise of functions and duties according to existing law and increased supervision."
But in the subsequent text, supervision is repeatedly mentioned (14 times) whereas independence is mentioned but once. I'd be interested to know then, given the appropriate context of Luo Gan's remarks, are Mr. Wang and Hui Mao now optimistic that China's courts will soon become sufficiently independent of the party and politics to act as an effective check on abuses of power, to rule as they see fit, and to mitigate some of the problems mentioned in the original post?
Hui Mao - February 6, 2007 9:45 PM
Jeremiah,
I do see Chinese courts slowly becoming more independent from the executive branch in the future and taking a larger role in checking abuses of power of the executive branch. This has already happened to a certain degree. 15 years ago it was unheard of and unimaginable for Chinese citizens to file lawsuits against their government. Today thousands of these cases take place routinely in Chinese courts every year and the government loses a good portion of these lawsuits. With that said, I think this will be a slow process, and I don't think the Chinese judicial system will ever reach the level of independence you see in western countries without major political changes. None of these opinions, however, is based on anything from Luo Gan's speech. I think Luo's speech is just one of those typical Chinese political speeches: long, obvious, boring, full of politically correct cliches, and nothing groundbreaking. It certainly is not any sort of dire warning or signal any sort of major change of course like the NYTimes claims.
Hui Mao - February 6, 2007 9:46 PM
The full speech in Chinese can be found at:
China Law Blog - February 6, 2007 11:26 PM
Jeremiah/Hui Mao --
Thank you both for this discussion. I know Luo Gan is an important figure in China's court system, but I have to think the proof is in the pudding and Hui Mao is right about the increasing power of the courts to check the government, at least when it acts improperly AND against what Beijing really wants. This is a speech, it is not a trend. I am still waiting for my fellow blogger (who is completely fluent in Chinese) to check in on this issue and will report back again when he does.
Jeremiah - February 7, 2007 12:06 AM
Hui Mao,
It appears then that we are in agreement. I didn't take Luo Gan's speech to be any kind of major policy shift either. Quite the opposite, I took his remarks to mean that there would be few, if any, changes in the coming year. After reviewing the original text (thanks for the link), I see that your assessement of "long, obvious, boring, full of politically correct cliches, and nothing groundbreaking" is spot on. This is frankly troubling for me. As I mentioned in the original post, I think that one of China's greatest challenges is law enforcement. For example, China has some of the toughest environmental laws of any country on its books, but it can't seem to get local officials to enforce those laws. An independent judiciary might be an important tool to hold local officials accountable to enforce existing regulations. Of course, there are political risks to such accountability.
The late Qing reformer Liang Qichao once wrote:
"A law that is not carried out is tantamount to no law; it is therefore necessary to define the powers of the judiciary. Bad legislation is worse than no legislation, and so it is necessary to decide where the legislative power should belong. If those who violate the law are not punished, laws will become void as soon as they are proclaimed; therefore, the duties of the judiciary must be defined. When all of these are carried to their logical conclusion, it will be seen that trade cannot be promoted without a constitution, a parliament, and a responsible government." (Xinmin Shuo, Yinbing shi wenji, 13:33a-b, translation Chester Tan in de Bary, 2000)
China Law Blog - February 7, 2007 12:20 AM
Jeremiah --
What a great quote!
Hui Mao - February 7, 2007 1:33 AM
Jeremiah,
I agree that enforcing the law is one of the key challenges that's facing China right now and I think that this is definitely one of the top issues for the CCP leadership as well. I'm optimistic about progress in this field because I believe that the CCP leadership in Beijing, i.e. the guys writing the laws, really do want to have the laws enforced and I think they see that the best way to accomplish this is to have courts that are independent from the local governments.
Joseph Wang - February 7, 2007 6:14 AM
No one in China is talking about making the courts or the judicial system independent from the Party.
However, the question is *how* the Party controls the court system, and there is a lot of support for the premise that the way that the Party should control the courts is by having the legislatures write the laws and the courts interpret them impartially rather than have Party officials issue instructions directly to the courts.
One reason that this is a popular idea is that this would likely strengthen central control that Beijing has over what happens. If you issue instructions through the party bureaucracy they are going to pass through many layers of people with their own agendas, which are often very different from Beijing's. By contrast, having a court system that is independent of local control and which strictly interprets the laws that Beijing issues, means that laws and regulations issued by the center get implemented on the ground more directly.
One other thing is that there is a lot of interest in the concept of checks and balances in China. Again, no one is talking seriously about changing the Party's dominance of the political system, however, the Communist Party is not a monolithic body, and one of the goals of the Chinese government has been to make sure that no group or person within the Party has too much power, and to make sure that the Party stays responsive to public opinion so that it doesn't get overthrown.
Something that is interesting is the nature of the lawsuits and the role of the courts. In a typical lawsuit, no one is challenging the rule of the Communist Party. What is usually being challenged is a local official's implementation of the law, and the argument that is used is basically that the official rather than the plantiff is acting in opposition to the Party center.
There was nothing particularly new or remarkable about the Luo Gan speech. The big problem with the NYT article was that instead of trying to explain some of the assumptions and beliefs that Luo Gan have (which can be challenged), they were describing their own beliefs on the nature of the court system.
China Law Blog - February 7, 2007 10:22 PM
Hui Mao --
I completely agree with you regarding Beijing wanting the courts to be independent from local governments, but that is still not the same thing as being independent, because Beijing will still control.
China Law Blog - February 7, 2007 10:24 PM
Mr. Wang --
I completely agree with you. Beijing wants the courts to be fair in civil disputes so that the courts will help diffuse tensions, not increase them.
Hui Mao - February 8, 2007 12:21 AM
Dan,
I agree. Chinese courts will not become completely independent without some other major political changes in China. But for now, being independent from local governments is the best we can hope for.
China Law Blog - February 8, 2007 1:17 AM
Hui Mao --
I agree. On a somewhat related topic, that is why I think centralizing executions in China is a good thing.