Wong Kai Shing
[Ed. Note. The following paper is written by Wong Kai Shing, co-ordinator of AHRC's Legal Training Workshops for Chinese Judges. In this paper, he examines the progress, deficiencies and challenges for the reform of China's judiciary.]
In the past two decades, owing to the tragic experience of the Cultural Revolution and the urge for economic development, China attached great importance to the reform of its legal system. On the one hand, safeguarding the basic security of people can help to maintain social stability. On the other hand, a credible legal system can provide a solid base for developing a market economy. At the same time, rapid economic transformation has been leading to vigorous social dislocation. Under economic reform and the open-door policy, the increase in individual autonomy and contacts with the outside world has raised the expectation of people for more protection of their basic rights. As a result, legal reform has become an urgent task to resolve the rising conflicts and expectation in society.
A major aspect of China's legal reform is the reform of judiciary. From the past experience of many countries, an impartial and independent judiciary is one of the most important safeguards to protect human rights. Court is the last resort of people to resolve conflicts and to seek for justice. In October 1999, the Supreme Court of China(SPC) announced a Five-year Reform Plan of the People's Courts. The plan signifies an important step of China to reform its legal system to meet inter-national standards. This article will examine the present problems of China's courts and discuss the signifi-cance of the Five-year Reform Plan.
China's Judicial System
After the founding of the People's Republic of China, the development of China's judicial system can be divided into four periods. From 1949 to 1956, with the abolishment of the Nationalist legal system, the ruling Chinese Communist Party (CCP) aimed to construct a socialist legal system. In 1954, the Organic Law of the People's Courts of the People's Republic of China was adopted by the first National People's Congress (NPC) which divided the people's courts into four levels: the Supreme People's Court, the higher people's courts, the intermediate people's courts, and the basic people's courts. From 1956 to 1966, the legal development was stagnated by the Rectification Movement and the 'Anti-Rightist Movement.' From 1966 to 1976, China's judicial system broke down under the chaotic social and political situation during the Cultural Revolution. The fourth period started from 1979 to the present. Economic construction replaced class struggle as the basic task of the CCP. The judicial system was gradually recovered with the establishment of a large number of people's courts at different levels.
People's courts at all level give hearings to criminal and civil cases. The Supreme People's Court and the higher people's courts handle major criminal and civil cases. With the exception of the Supreme People's Court, all people's courts are local courts at provincial level to county level. There are also military courts and other special people's courts. The Supreme People's Court supervises the administration of justice by all other local people's courts and special people's courts. It also has the power to interpret the application of laws and decrees. Hearing of a case is carried out either by a collegiate bench or an independent judge. The collegiate bench consists of a collective of judges or of judges and jurors. The people's courts adopt a 'two-trial' system. Litigants to a case have the right to appeal to the next higher level people's court against the judgement made by a local court in the trial of first instance, but the appeal can be made only once and the judgement of the second trial shall be final. However, if a litigant, the procuratorate or the court itself finds that there is an erroneous verdict or ruling in a case after two trials (because, for instance, new evidence sufficient to reverse the verdict or ruling is found), one can ask the court to retry the case through the procedure for trial supervision.
Each court has a president, several vice presidents, chief judges, judges, and assistant judges. A judicial committee is set up in each court to exercise collective leadership in judicial work, composed of the president, vice-presidents, chief judges, and experienced judges. The judicial committee is responsible for discussing important and difficult cases and making decisions on judicial matters. The president of the Supreme People's Court is elected by the NPC. The vice-presidents, judges of the Supreme People's Court and members of its judicial Committee are appointed by the Standing Committee of NPC at the suggestion of the president. The presidents of the local people's courts are elected by their respective local people's congresses. The standing committees of the local people's congresses appoint the vice-presidents of the people's courts, chief judges, and other judges.
Problems of China's Judicial System
The judicial system in China completely broke down during the Cultural Revolution. Although legal construction has been being carried out since 1979, many problems, which greatly hinder the promotion of fair trial and the protection of the basic rights of people, are still existent within China's judicial system.
Lack of safeguards on the independence of adjudication from interference
According to the UN Basic Principles on the Independence of the Judiciary, the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. This principle is essential to ensure the fair trial and thus the protection of human rights. However, Chinese judges have not been provided with effective safe-guards to counter external interference as well as internal interference.
Article 126 of the Constitution of the People's Republic of China stipulates that 'the people's courts shall, in accordance with the law, exercise judicial power independently, and are not subject to interference by administrative institutions, public organisations or individuals.'However, the under-standing of judicial independence, the selection system of judges and the financial arrangement for the people's courts in China have greatly under-mined the capability of the people's courts to counter external interference.†
The independence of the people's court is limited, as the president, vice presidents, and judges of the Supreme People's Court and local people's courts are subject to the removal by the NPC or the local people's congresses respectively. In particular, the CCP holds great influential power with its power to nominate candidates for these major positions in the people's courts. The rationale behind such a design is that the NPC and local people's congresses are representing the people to carry out both the functions of parliament and government under the leadership of the CCP, so the principle of the separation of powers among the legislature, the executive, and the judiciary are considered not applicable in China. Under this system, the term of office of judges is not secured and is subject to influence by political bodies. The financial resources of the local people's courts are provided by their respective local governments. In order to sustain or to get more resources, the people's courts may need to take into consideration the effects of their judgements toward the administration. In fact, the issue of local protectionism is a major obstacle to the enforcement of court orders in China.
Inside the people's courts, judges are subject to internal interference in adjudication. In China, it is the people's court as an institution, not judges, which is vested with the independent power of adjudication. In many other countries, the independent power of adjudication is vested in judges. The collegial benches and independent judges do not have the final say on the judgement. The president and the judicial committee of a people's court have the power to review the draft judgement. In fact, most judges in China have to resort to court presidents for approval of verdicts before they can be announced. If a case is considered vital and difficult, it has to be submitted to the judicial committee to discuss and decide the judgement. The problem is that the judicial committee decides the judgement behind closed doors instead of before the court. As a result, the judicial committee does not hear the testimonies of witnesses and the verification of evidence before the court. The rights of the plaintiffs and defendants to an open and fair trial are totally denied.
Lack of qualified judges
The second problem is the lack of qualified judges. When the people's courts were reconstituted in the 1980s, there was a serious shortage of judges. To solve this problem, many local cadres and military people were transferred to act as judges. Most of them had not received any legal training. In 1995, only about 5% of the judges in China were university graduates. At the end of 1997, the number of judges was about 280,000. As a result, the quality of trial was greatly affected. The Judge Law promulgated in 1995 stipulates that all new judges have to pass a standard examination. This can help to improve the quality of newly recruited judges. However, many existing judges have to be either retrained or removed to raise the overall standard of judges. In his report to the National People's Congress, Xiao Yang, the president of the Supreme People's Court, said that China dismissed more than 540 unqualified courts and another 1,000 judges, who still could not qualify for their posts, were transferred in 1999.
Lack of resources
The third problem is the lack of resources. Many local people's courts are facing a difficult financial situation. The salaries of judges are low in comparison with many other jobs. Under this situation, the people's courts become more susceptible to the influences of the local governments. At the same time, the lack of resources and low salaries increase the incentive for corruption among judges. In fact, corruption of judges has aroused public concern in China.
Problems in trial proceedings
Many important principles of fair trial have not yet been received nor put into reality in China, such as:
* rejection of evidence gathered through improper means such as torture;
* the accused not to being compelled to testify against himself/herself or to confess guilt; and
* provision of access for defendant lawyers to evidence and related materials before trial.†
A significant event was the revision of the Criminal Procedural Law in 1996 to adopt a provision similar to the presumption of innocence and to increase the role of lawyers in defending the rights of the accused and the access for defendant lawyers to evidence and related materials, but there are still many problems in its implementation. Confession is still the major basis for conviction.
Significance of the Five-year Reform Plan
The Five-year Reform Plan of the People's Courts promulgated in October 1999 aims to establish a fair, clean, and efficient judicial system and deals with some of the above problems. One of its major reforms is to increase the responsibility of the collegiate benches and independent judges in adjudication. According to the plan, except for those very important and difficult cases that should be submitted to the judicial committee for judgement, the collegiate benches and independent judges should determine all cases. The presidents of the people's court cannot change their judgements. This is a step forward. However, it is the judicial committee of the people's courts that has the power to decide on which cases are to be considered ‘important and difficult'. For these cases, the judicial committee can still decide the judgements behind closed doors. The independent power of adjudication of judges remains limited.
Another major reform focuses on promoting the quality of judges by improving the judge selection system. In the next five years, all the people's courts must adopt a selection system which requires that the higher court judges be selected from the most-qualified judges of lower courts, or high-performance lawyers, or other high-level legal professionals. Judges newly recruited from the recruitment examination should first work for the intermediate people's courts and basic people's courts. The SPC also plans to select a small number of the existing judges to be considered ‘high-ranking'. They must be highly proficient, experienced and capable of independently adjudicating lawsuits. The unqualified judges will be dismissed. All these measures can help to increase the quality of judges. However, sufficient resources have to be given to the people's courts to raise the salary of judges in order to attract the best people to join the judiciary.
To improve the checks and balances among judges, the reform will separate divisions and personnel responsible for different stages and aspects of a case, namely filing the case, trial, supervision and enforcement of the court order. The reform plan also asks for the Criminal Procedural Law to be strictly followed in conducting trial. Furthermore, the SPC issued a regula-tion tightening conflict-of-interest guidelines for judges on 31 January 2000. The regulation, which will cover provincial and military courts, specifies occasions when the judges should temporarily step down from the bench to avoid conflict of interest.
The Five-year Reform Plan of the People's Courts represents an important step in judiciary reform for China. If the plan can be implemented successfully, the quality of trial in China will be greatly improved. However, more thorough reforms have to be taken to secure the fair trial and thus the protection of human rights. The reform plan does not deal with the problem of external interference from the local people's congresses, the party, and the local governments. To solve this problem, the power of appointments of judges should be vested in an independent judicial service commission. Also judges should have guaranteed tenure until a mandatory retirement age. The salaries and resources of the people's courts should be provided by an independent fund, separated from the governments.
Internally, the judicial committee should be abolished to allow judges to have the independent power of adjudication. On this point, some people argue that considering the lack of qualified judges in China, the judicial committee is needed to ensure the quality of trial. However, the closed-door operation of the judicial commit-tee has already denied litigants the right to fair trial. The right way is to improve the quality of judges through the reform of the selection system of judges and regular training of existing judges. At the same time, the reform of the trial proceedings should be dee-pened in accordance with the inter-national standards on fair trial. The role of lawyers should be strengthened to defend the rights of the accused in trial.
As a whole, despite many problems as discussed above, there is an increasing momentum to reforming China's judiciary. The signing of the International Covenant on Civil and Political Rights by China may add fuel to the push for reform leading to conformity with international standards. The international community can play a constructive role by sharing experience and providing assistance in the reform of China's judiciary and the training of judges.
Posted on 2001-08-17