By staff reporter Qin Xudong

From Caijing Magazine

Twenty-one people were recently tried and convicted for their involvement in selling tainted milk that poisoned over 300,000 children in China. While many of the accused met harsh sentences, civil compensation for the victims is elusive.

Many of the victims’ family members have filed civil lawsuits seeking compensation. All of them have had their cases rejected by the courts, which claim to be waiting for superior orders. To launch such lawsuits is a fundamental right of China’s citizens. To have them rejected is an all too typical rite of passage for those who engage with China’s judiciary. This and other reasons are why judicial reform is necessary.

New Direction

The movement to establish an impartial legal system in China has entered a new phase 30 years after the country began its economic revolution. On November 28, 2008, the Politburo of the Communist Party of China (CPC) began a new round of judicial reform with the laboriously titled “CPC Central Committee’s Political Commission’s Opinions on Deepening the Reform of the Judicial System and Working Mechanism.”

The new reforms have taken four tasks as primary: optimizing the distribution of judicial functions and powers, balancing strict execution of criminal law with clemency for certain situations, enhancing the quality of officials in the judicial system, and ensuring a healthy budget for China’s courts. Meanwhile, the Supreme Court and the Supreme Procuratorate also publicized respective roadmaps for reform that contain, respectively, a set of ten and five additional goals.

These roadmaps emphasize “Chinese characteristics” and “national conditions,” meaning that China won’t be adopting foreign judicial systems wholesale.

But certain protocol common in developed court systems might be in store. A subtle re-orientation can be sensed in the details of the new reforms. For example, former reforms focused on the professionalism of judges by replacing uniforms suggestive of autocratic authority with more modern robes. This time, the emphasis is on “popularization of law” and “democratization of law,” reminding judges to not forget the “mass route.”

The CPC’s opinion stresses the concepts of “service” and flexibility, while glossing over other common legal concepts like stability and predictability. Examples of this can be seen in the reaction of both the courts and the procuratorates to China’s sweeping economic downturn. The People’s Supreme Court has ordered cautious enforcement of the law when handling indebted enterprises that still have a promising future. In Guangdong Province, where the slowdown has taken some of its harshest tolls, the local procuratorate went so far as to encourage benevolent neglect for accused corporate leaders if their crimes were not severe.

These examples also tie into the heavy stress placed on the courts’ mediation mechanism, i.e., “executing laws according to local characteristics rather than universal rules of fairness and equality.”

Thirty Years of Reform

For a clear picture of the current reforms, it is necessary to review judicial reforms made since 1978, when China’s judicial system was restored.

From the 1980s to the middle of 1990s, the procedures of formalized justice gradually worked their way into the system, and judges became increasingly professionalized. In 1997, the Fifteenth CPC National Congress took as an objective “building a socialist country under the rule of law.” This began a comprehensive overhaul of the judicial system.

After the Sixteenth CPC National Congress of 2002, the CPC Central Committee formed a leading panel for judicial reform and issued 35 guidelines at the end of 2004. This period witnessed the most active reform. Over the course of many trials, the Supreme Court began to separate judicial administration from judicial practice. It also issued measures to address the problem of a “grassroots tendency in legal professionalism.”

In 2007, the Seventeenth CPC National Congress vowed “to deepen the reform of the judiciary system, optimize the distribution of judicial functions and powers, standardize judicial practices, and build a fair, efficient and authoritative socialist judiciary system to ensure that courts and procuratorates exercise their respective powers independently and impartially in accordance with the law.”

The language of the newest reforms harks back to these words – although there are some key differences. “Grassroots” and “democratization” appear again in the new reforms, suggesting some degree of backpedaling. The courts are the last place citizens can resort to for help. However, Chinese courts are still heavily influenced by the administrative branch and do not always function as expected by society. New conflicts crop up constantly as China transitions toward being a developed nation, and sometimes judicial reform is forced to resort to old measures in order to meet deal with these issues.

A Political Connection

Generally speaking, judicial reform is closely linked to political reform. With prospects for political reform unclear, it is improbable the China’s judicial reforms will proceed in a straight line – hence the current reform adopts many expedient measures to tackle problems rather than pursuing a holistic plan.

It is safe to say the current judicial system is still awaiting the decision for a comprehensive overhaul. The new round of reform is characterized by “cautiousness,” which emphasizes budget and policies rather than touching on systemic issues. The result is an obscure blueprint for many controversial issues rather than a detailed plan.

For example, the reforms do not list many measures of how to protect the rights of both parties and their lawyers. Though 2007 amendments to the Lawyer Law stipulate rules for protecting lawyers’ rights, these rights are hard to realize due to a lack of detailed execution measures and obstacles set by many government organizations.

China’s system of reeducation through labor – a one-to-three year restriction of a citizen’s freedom without a trial – also get only a perfunctory treatment. The new reforms do not provide any decisive measures on issues such as whether the police or the courts have the power to approve this so-called reeducation. There is also nothing about separating prison management from law enforcement.

Fund appropriation is another issue. More funds are needed to support the judicial system, but the courts should not depend on local budgets in order to avoid being influenced by local governments. Ideally, judicial allocation would be independent of administrative powers in order to realize an independent judicial system. However, the current plan only make provisions for more funds to be channeled from both central and local governments.

The right to appoint judges is even more fundamental than fiscal policy, but because leadership mechanism of the ruling party is still undergoing change, this issue has been put on the backburner.

The deepening of judicial reform must be ushered in by political reform. Ideas and systems that contradict the rule of law must be cast away, and more subtle and sensitive issues should be handled with courage.

Staff reporter Ye Doudou also contributed to this article.