Jerome A. Cohen. Struggling for Justice: China's Courts and the Challenge of Reform. World Politics Review.

January 14, 2014

China's new leaders are striving to consolidate their country's return to prominence on the world stage. They confront Promethean challenges: restructuring a dynamic economy; responding to the demands of an increasingly prosperous and sophisticated society; controlling horrendous environmental pollution; liberating the cultural, civic, academic and intellectual potential of their talented people; reducing the endemic corruption that is undermining their success; adapting the Communist political system to promote these prodigious changes while balancing the needs of public order and human rights; and improving cooperation with other countries by enhancing foreign respect for China's accomplishments.

Courts, or some effective functional substitute, are essential for the attainment of all these goals. Yet China's judicial system is in the midst of a crucial struggle to determine its nature, role and power.

China's new leaders are making bold policy statements promoting the notion that, in their decision-making, Chinese courts should exercise greater independence from local authorities and other distorting influences. They have announced a series of new measures and experiments designed to increase the legitimacy of the judicial process and garner greater public support for it. These reforms face serious challenges, but the current attempt to chart a new course deserves our attention, study and encouragement.


First, some language clarifications. Foreign observers frequently misunderstand the Chinese Communist Party's use of the term "judicial system," which includes not only the courts but also the police as well as the procuracy (prosecution). Meanwhile, the contemporary Chinese terms "shenpan yuan" and "faguan" are usually rendered as "judge" in English, instead of their more literal translation as "adjudication person" and "legal official." The word "judge" implicitly evokes the image of a Western-style judge. Although it has been more than a decade since a reformist Chinese chief justice ordered his colleagues to don black robes instead of their previous military-type garb, anyone familiar with their operations knows that these adjudicators lead different professional lives from their Western counterparts.

Chinese courts report to the nominally all-powerful National People's Congress (NPC). Although the nation's judiciary is formally separate from the executive branch as well as the procuracy, the status of judges is not very different from that of other members of a vast government bureaucracy, and they are subject to a detailed, rather mechanical system—analogous to the general cadre evaluation system—for evaluating their performance. Yet they are gradually becoming professionally more distinctive.

China's courts are increasingly staffed by personnel who have received formal legal education at undergraduate or graduate university levels as well as at a national judicial college. While emphasizing "socialist law with Chinese characteristics," their studies have generally inspired respect for continental European civil law and Anglo-American common law models. This is a major change from earlier decades when, even after the post-Cultural Revolution re-establishment of the courts in the late 1970s, most judges continued to be recruited from the army or the police. Nonetheless, some Chinese scholars contend that, particularly in the rural areas that are still home to more than half the country's population, the basic courts would be better served by judges who had less legal education but more real-life experience than recent young recruits, who know only law on the books and lead a sheltered existence.

Although judges generally must now pass a national civil service examination as well as a national judicial examination, they are hired not by a central judicial office but by local courts, usually with the approval of the court's Communist Party political department. Most are, or soon become, party members and therefore subject to the discipline of the party organizations within and outside the court as well as the discipline of the judicial hierarchy. One of the central facts about China's judicial bureaucracy is that it is intimately intertwined with the party bureaucracy, as we shall see. Another crucial factor is that the courts have largely been financed from local government sources rather than from central or provincial coffers, which stimulates their responsiveness to local pressures.

After a period of apprenticeship, Chinese judges are assigned to one of the specialized court divisions dealing with criminal, civil, administrative and other types of cases. Except in matters of minor importance, they normally operate in panels of three. There is a two-tier adjudication arrangement. Most cases tried in the first instance court are handled by a single professional judge sitting with two "people's assessors" selected from a roster of approved laymen available to give proceedings the appearance of popular democracy. In practice, assessors ordinarily take their cues from the judge in charge. Decision-making on appeals to the second instance tribunal is usually dealt with by a collegiate panel of three career judges.

Yet some sensitive cases are never accepted for court deliberation. Under instruction from central, provincial or local authorities from the party, government or court, a court's case reception division may simply refuse to inscribe a civil or administrative law complaint without offering adequate reasons. Even commercial cases as well as challenges to the regulations and actions of administrative agencies are sometimes rejected, creating extreme frustration among individuals and groups seeking judicial remedies for their economic, social and political grievances. Before he was imprisoned and later released to study in the United States, Chen Guangcheng, the blind legal activist, was frequently rebuffed in his efforts to use the courts to remedy injustice, whether the case involved illegal taxation, unfair denial of a business license or unlawfully coerced abortion or sterilization. "What do they want me to do?" he once asked me. "Go into the streets? I don't want to do that."

Nevertheless, China's courts are overrun with civil cases, despite periodic nationwide campaigns to settle disputes through pretrial judicial mediation as well as popular mediation institutions outside the courts. Government-established arbitration commissions also relieve the courts of many disputes. Yet in 2012, the most recent year for which statistics are available, more than 12 million trial and appellate cases were before the courts, more than China's roughly 200,000 judges can comfortably handle. In that year they had to cope with more than 6.6 million new civil cases, 136,000 new administrative law challenges and 840,000 new criminal cases.

In these circumstances, trial court hearings have generally been brief and more often focused on documents, including transcribed pretrial witness statements, than on live testimony—except from the parties to the dispute—but a new civil procedure law emphasizes witness appearances in court. China now has more than 220,000 lawyers available to represent the parties and aid the courts. Because of the greater opportunities for earning income, their presence is more apparent in civil and administrative matters than in criminal cases, where most defendants still are unrepresented.

The judicial activities of lawyers are restricted in many ways. To an American observer, the most striking limitation on Chinese lawyers is an inability to invoke constitutional protections before the courts. Despite a brief flurry of uncertainty a decade ago, Chinese courts are now plainly prohibited from deciding constitutional issues. Those issues are the exclusive province of the NPC Standing Committee, which has proved adept at avoiding them.

The trial of criminal cases is especially problematic. Many uncontested prosecutions are disposed of through simplified procedures that do not guarantee an uneducated defendant's comprehension of the charges and choices confronting him. When lawyers do take part in criminal trials, their opportunities to demonstrate their skills are often limited, despite legislative amendments designed to aid their performance. Whether new procedural reforms will be more successful than previous ones in securing the appearance of witnesses in court—witnesses appear in fewer than 5 percent of prosecutions—has yet to be proved. Requiring witnesses to come to court and be subject to questioning and cross-examination will be a major test of judicial power. Getting policemen to submit to cross-examination in response to defense claims that they used torture to obtain confessions will be a particularly significant challenge.

One of the most controversial aspects of Chinese trials is that, in cases of any sensitivity, whether criminal, civil or administrative, the judicial panel that tries the case does not decide it. Generally, the division chief or his assistant, after the routine review they accord every proposed decision, will pass difficult or sensitive cases to the court chief or one of his deputies, usually for approval by the court's "adjudication committee" comprising the court leadership. This group, after merely hearing a trial panel's summary and recommendation, then makes the decision under the guidance of the court's chief judge.

The decisions of judges and the adjudication committee are often influenced by a range of factors in addition to those intrinsic to the legal merits of a case. The protection of local interests may be crucial to the resolution of a business dispute between a local company or person and those from elsewhere in China or abroad. Judicial corruption is frequently a major factor, even in criminal cases. "Guanxi," the network of personal relations that judges sometimes find more compelling than legal norms, may prove even harder to detect and eradicate. In criminal and certain other cases, ever-present in the judicial mind is the need to "maintain social stability," that is, to take account of public opinion in cases that attract popular attention, even if that requires misapplication of substantive or procedural law. A court may also yield to the blandishments of an influential or aggressive litigant who otherwise threatens to petition against its decision all the way to Beijing.

Judges may be informally bombarded from many sources, including local government or party officials; members of the local people's congress, which, in addition to the procuracy, is supposed to supervise the work of the local courts; members of the local people's consultative conference or other prominent residents; judges from a higher court; and individual provincial or central party or government leaders.

This puts judges, who do not enjoy life tenure or long-term job security, under considerable pressure. The Chinese Constitution purports to guarantee courts as an institution with the right and obligation to carry out their duties independently, but no legal provision protects the independence of an individual judge. Moreover, despite the constitutional protection of the courts' independence, there is no clear understanding of the meaning of that protection, and the party maintains a formal system of external control over judicial decision-making by means of a local party political-legal committee (LPLC). The committee decides the outcome of important cases for the courts at its level of the party-state organization as part of its responsibilities for overall "coordination" of all local "judicial institutions," including the police, procuracy, justice bureau and court. Any doubts that a court may have about the needs of "social stability" are resolved by the LPLC.

The leaders of each of the local legal institutions take part in the LPLC. That committee was generally headed by the local police chief, whose government rank is inferior to that of some other committee members but who outranks them in the party hierarchy. Recently, however, as part of a new, ongoing central effort to improve the administration of justice, leadership of the LPLC reportedly has generally been given to a deputy party secretary of the overall party committee responsible for the locality. The new reform spirit has also reportedly begun to cut back or perhaps even eliminate the power of the LPLC to decide concrete cases, restricting its purview to more general matters such as policy issues, personnel appointments, promotions and removals, and other administrative issues.

These changes have been fueled by growing popular dissatisfaction with the perceived unfairness of the country's courts and with the party's responsibility for it. A spate of embarrassing, highly publicized wrongful criminal convictions has spurred a nationwide sense of injustice, and this brings us to the current ferment over the judicial process.

This article was originally published by World Politics Review on January 14, 2014. Below is only an extract of the article. For the full article, please click here.