Party Rule or Rule of Law?


Faced with the demands of a chaotic, modernising country, the Chinese Government wants to embrace the rule of law as a means of regulating society and maintaining stability. But does the Communist Party intend to allow an independent judiciary?

The mainland court system is not an independent entity that can curb government power. Many judges are poorly educated and corrupt. Judges must answer to government officials. Political pressure is common, and Communist Party committees often dictate rulings.

The highest judicial organ in China, the Supreme People’s Court.

The scale of the problems facing the judicial administration is large. The Guangzhou Daily, reports that in 2004 Chinese courts accepted 7.87 million cases, compared to 5.68 million in 2003 and 5.35 million in 2000.

In 1996 reforms were introduced that expanded a criminal defendant’s right to counsel and sought to establish a more impartial judiciary. However, the reforms, intended to introduce a more adversarial trial system, have not been successful. The South China Morning Post reports that, of the 770,947 criminal trials conducted in China in 2004, 99.7 per cent resulted in convictions.

Political pressure on judges is routine and derives in part from the subservient status of the court system. Locally, judges are appointed by their people’s congresses, while the courts receive their budgets from local governments. Branches of the Communist Party operate committees that can influence a court behind the scenes. Every court in China has an adjudication committee that oversees the work of the court and handles difficult cases. Its decisions are binding on the judges or judicial panels that hear individual cases. Most adjudication committees do their work by reading paperwork, not by trying cases or by hearing witnesses. Defendants have been convicted and sentenced to imprisonment even though found not guilty during their trial because an adjudication committee had decided that a defendant was guilty and a sentence must be imposed.

Li Huijuan received a master’s from the
University of Politics and Law in Beijing in 2001.

Government and the Communist Party are the arbiters of law in China. The New York Times reports that Luoyang Middle Court judge, Li Huijuan, ruled a provincial law invalid when faced with a conflict between that law and a national law. She was contacted by angry provincial officials from the court’s discipline committee. They referred her ruling to the Henan People’s Congress, who, in turn, regarded it as judicial revolt.

Conflicts of law issues are meant to be referred to the Standing Committee of the National People’s Congress, the national supreme law-making body. This rarely happens and judges usually dispose of conflicts of law problems without ruling which law is invalid. When the Li Huijuan case was re-heard by the Henan province High Court, it ruled as Judge Li had except it criticised her for invalidating the provincial law.

But things may be changing. A Beijing court has announced it will stop punishing judges if a ruling is later deemed to be politically or ‘legally’ wrong. There’s a budding idealism about the law, and its potential to transform Chinese society, evident not only in the number of new lawyers but in the emerging civic belief that ordinary people have ‘legal rights’. The Supreme People’s Court has been talking since the mid 1990s of a national judiciary paid by the central government. That innovation would help break the nexus between local government and Party officials and the courts.

The UN Special Rapporteur on Torture, Professor Manfred Nowak, in a preliminary report in December 2005, noted that torture was ‘widespread’ in the Chinese police/justice system but was on the decline, especially in urban areas. He recalled that serious allegations related to torture and other forms of ill-treatment in China have been submitted to the Government for its comments:

These have included a consistent and systematic pattern of torture related to ethnic minorities, particularly Tibetans and Uighurs, political dissidents, human rights defenders, practitioners of Falun Gong, and members of house-church groups.

The Chinese Government, according to Nowak, was aware of the problem and was taking some steps to combat it. In 2004, the Ministry of Public Security issued regulations prohibiting the use of torture and threats to gain confessions.

China allowed Nowak to make almost unannounced visits to prisons and have private talks with prisoners, although some Government authorities, particularly in the Ministries of State Security and Public Security, tried at times to restrict his attempts at fact-finding. It is unusual for China to allow itself to be scrutinised this way. The Special Rapporteur’s visit came 10 years after it was first requested.

Among Nowak’s key preliminary recommendations to the Chinese Government are that measures be taken to

  • enhance the professionalism, efficiency, transparency, and fairness of legal proceedings;
  • raise the status and independence of judges and courts within the Chinese legal system.

The report also recommends that lawyers, particularly criminal lawyers, be more effective in representing the rights and interests of their clients, including involvement at the earliest stage. (Suspects are customarily not allowed to have a lawyer until the State is ready to go to trial. And, defence lawyers can be indicted by the prosecutors opposing them if deemed too aggressive!)

Under Section 306 of the Chinese Criminal Code, any lawyer who counsels a client to repudiate a forced confession could risk prosecution. The Special Rapporteur pointed:

to conceptual or ideological constraints to the effective implementation of the prohibition of torture. The criminal justice system is focused on admission of culpability, and the role of obtaining confessions continues to be central to successful prosecutions.

Professor Nowak recommended that Section 306 be abolished along with ‘imprecise and sweeping definitions of crimes that leave large discretion to law-enforcement and prosecuting authorities’: crimes such as ‘endangering national security’, ‘disrupting social order’ and ‘subverting public order’. He also called for the abolition of ‘re-education through labour’ under which, people can be sentenced to forced labour without trial and limiting the scope of the death penalty by abolishing it for economic and non-violent crimes.

That these recommendations exist at all is clearly a positive step in the long and complicated dance that is Chinese judicial reform. The question is, will the Chinese Government have the courage to embrace these proposed changes and move closer to the rule of law, or will it continue to be accused of human rights violations and torturing its citizens?

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.