judicial independence in the people's republic of …judicial independence in the people's...

JUDICIAL INDEPENDENCE IN THE PEOPLE'S REPUBLIC OF CHINA

LARRY SMEETS*

The Chinese Communist Party (CCP), under the leadership, respectively, of Hua Guofeng and Deng Xiaoping, accorded the Chinese judiciary a surprisingly wide margin of independence in deciding individual cases between

1978 and 1988. At the same time the CCP moved to reform the legal order in the People’s Republic of China (RPC), codifying the law in several areas and encouraging the judiciary to apply it equally to all who are touched by it, regardless of their “class background” or their record. The resulting changes in the administration of Chinese justice were marked. So marked, in fact, that a lawyer working in a legal advice centre in the capital Beijing in 1985, Zhou Yi, could openly complain to a reporter about those Chinese who did not yet respect the rule of law:

Some people have the wrong idea. They think that under the people’s democratic dictatorship you can’t apply the same legal criteria to everybody, because that amounts to using the law as an umbrella for bad people like landlords, rich peasants, counter-revolutionaries or bad elements. And they want to include people who once had a bad status but have had it revoked, and even their children. There are still some comrades who’ll say in a civil dispute that its class vengeance if the son or daughter of a landlord or rich peasant has hit them.

____ But you can only have people’s law when everyone is equal before it. Only a

Although the opinions expressed in this article are my views alone, I would like to thank Professor Burke Baker of the Faculty of Law, University of Alberta, Canada, for his assistance in completing the piece.

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few years back nobody dared say that. But some comrades, even some leaders, have still got it in for us because we “don’t serve the proletarian dictatorship”. Anyone would think that only unequal laws like those in South Africa were right.1

This paper proposes to examine these changes with a view to determining their nature and significance.

What developments, exactly, gave rise to this phenomenon? Are there historical precedents for judicial independence in China’s past, such that it can be said to be a product of that country’s history? Significantly, throughout all of Chinese history down to the late 1970s, no clear commitment was ever made by the country’s leadership or its intelligentsia to the development of what many regard as an essential prerequisite to judicial independence, namely, a separation of powers doctrine suitable to Chinese circumstances. This lack of commitment was reflected in the structural make-up of the successive dynasties and modem states. The legislative, executive and judicial functions were not effectively divided up between distinct institutions, such that one might serve as a counterbalance to or check on the other. Functions were fused in the person(s) of an emperor or central committee instead, as well as in those of delegates at subordinate levels.

These emperors and central committees found it incumbent upon occasion, of course, to legitimize their rule. That is to say, they claimed sanction for certain of their government’s official acts of state from a source of authority external to their own will. Such sanction usually was accrued from an ethical or philosophical body of doctrine though - Confucianism, or else Marxism-Leninism - rather than from a corpus of constitutional jurisprudence or legal precedents: from the ruminations of a dead deity, the more sceptical among us might suggest, rather than from those of a living bench. The essence of their approach is encapsulated in the phrase by the effective founder of the PRC, Chairman Mao Zedong (1893-1976) "Depend on the rule of man, not the rule of law”.2 This approach to ruling suggests that the phenomenon of judicial independence is sui generis recent Chinese history. However, further consideration of the historical record is necessary.

In traditional China, a period which is regarded by most scholars as lasting from the beginning of the Han Dynasty (206 B.C.-A.D. 222) to the end of the Qing Dynasty (1644-1911), official acts of state were generally legitimized on the basis of doctrine developed by the ancient sage Confucius (551-479 B.C.).3 Confucian

1 Zhang Xinxin and Sang Ye, Chinese Lives; An Oral History of Contemporary China 192-193 (Irwin 1987).

2 U.S. Consulate-General, Hong Kong, Selections from China Mainland Magazines 23:625 (1968).

3 Other streams of thought were Buddhism and Taoism. One hesitates, of course, to encapsulate the legal history of some two millennia in a few paragraphs. However, the weight of scholarly opinion suggests that in the particular case of China, this is possible. T’ung-tsu C’hu, for example, writes “we are convinced that the basic social and economic structure, remained unchanged for about two thousand years, from the establishment of the Han empire to the overthrow of the Ch’ing empire. Since we believe that law in such a static society must also remain unchanged, our hypothesis is that traditional Chinese law, once its pattern had become

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ism, to be sure, was not the sole orthodoxy throughout all of the traditional period. Major differences of opinion over the proper relationship between the individual and the state did exist, the most notable being those between the Confucians and the School of Law, or Legalists (fa chia). Legalists were usually not scholar-bureaucrats like the Confucians, but practical men of affairs. Unlike the Confucians, moreover, they stressed the effectiveness of Fa, or positive law, ahead of that of Li, or moral law, in ordering social relations.4 However, their doctrines were in the ascendancy as the state orthodoxy only at the outset of the first dynasty in the traditional era, the Han Dynasty. Confucianism supplanted Legalism as the doctrine of state a century later, at around 100 B.C., and continued to dominate down to the advent of the modem era in 1911.5

It is appropriate to pause here and consider how the adoption of Confucianism influenced the subsequent development of Chinese legal history. Arguably Confucius inadvertently played a major part in precluding the emergence in China of that hallmark of Western systems of law, an adversarial system of justice. He stressed the role of ethics and reason in day-to-day living and social relations. “If the people are guided by laws and regulated by punishment”, he emphasized in The Analects, “they will try to avoid the punishment but have no shame; if they are guided by virtue and regulated by Li (moral law), they will have the sense of shame and also become good.”6 In keeping with this emphasis on virtue and moral obligations rather than on individual legal rights and duties, Confucius recommended against civil litigation and against relying on state magistrates as arbiters of disputes: “In presiding lawsuits, I am as good as any man. But the important thing is to cause lawsuits to cease in the future.”7

Under the impetus provided by the ancient sage’s teachings, an approach to conflict resolution grew up on the soil of traditional China which has persisted, in modified form, down to the present day. This approach was characterized by an admixture of extrajudicial mediation and compromise. Private civil disputes which generally ended up in court in Western societies were usually settled informally, under the watchful gaze of family elders, leaders of the rural clan, members of the village council or else the urban guild, or other trusted middlemen.

One observer depicts the mediation process as follows:First, the invited or self-appointed village leaders come to the involved parties to find out the real issues at stake, and also to collect opinions from other villagers concerning the background of matter. Then they evaluate the case according to their past experience and propose a solution. In bringing the two

crystallized, was consistent before the introduction of modem western law into the code ...” T ung-tsu C’Hti, Law and Society in Traditional China 10 (Hyperion 1961).

4 See D. Boddeand C. Morris, Lawin Imperial China 17-290 (Harvard U. P. 1967); ChO, id\ Wing-Tsit Chan, A Source Book in Chinese Philosophy Chapterl2 (Princeton U. P 19 63).

5 The influence of Legalism remained confined largely to political circles and economic groups.6 The Analects, Book 1, Chapter 2.7 Id., Book 12, Chapter 12.


parties to accept the proposal, the peacemakers have to go back and forth until the opponents are willing to meet halfway. Then a formal party is held either in the village or in the market town, to which are invited the mediators, the village leaders, clan heads and the heads of the two disputing families. The main feature of such a party is a feast. While it is in progress, the talk may concern anything except the conflict. The expenses of the feast will either be equally shared by the disputing parties or borne entirely by one of them. If the controversy is settled in a form of “negotiated peace”, that is, if both parties admit their mistakes, the expenses will be equally shared. If the settlement reached shows that only one party was at fault, the expenses are paid by the guilty family. If one party chooses voluntarily, or is forced, to concede to the other... it will assume the entire cost. When the heads or representatives of the disputing families are ushered to the feast, they greet each other and exchange a few words.8

The observer goes on to relate how the “conflict is settled” at that point when these heads or representatives “ask to be excused and depart.”9

It would be misleading to suggest that such extrajudicial mediation proved to be consistently successful. On the contrary, while most disputes were settled in this way, the process did break down at times, and resource was then made to state magistrates. For the most part, such magistrates were harried local chief executives; it was commonplace that they fulfilled a variety of other duties in addition to their judicial duties, serving variously as tax collectors, negotiators of state contracts, police superintendents, jail wardens, prosecuting attorneys, and sheriffs.10 One magistrate alone might manage a hsien, or district, populated by hundreds of thousands of residents. These officials, as a general rule, had no formal training in law or a related discipline; specialized knowledge of the law, when required, was provided by private secretaries whom they employed.11 The avarice of these “tigers and wolves” was legendary,12 their fees often imposing “extraordinarily heavy burdens on litigants.”13

As was seen above in the pre-trial stage of the Confucian legal process, social pressures were brought to bear on the disputants to settle their differences in a manner most equitable to all concerned. Once the dispute moved into the courtroom, in contrast, powerful pressures external to those brought directly to bear by the disputants oftentimes came into play. The administrator-judge did not focus his attention on such tasks as identifying pertinent individual duties and rights, which

8 M. Yang, A Chinese Village: Taitou, Shantung Province (1945), at 165-166. Cited in Lubman, Mao and Mediation: Politics and Dispute Resolution in Communist China, 55 Cal. L. Rev. 1284-1359 (1967). For a discussion of the mediation process in both traditional and modem China, see id.\ and Cohen, Chinese Mediation on the Eve of Modernization, 54 Cal. L. Rev 1201 (1966).

9 Yang, id. at 166.10 See Cohen, The Chinese Communist Party and tfJudicial Independencen: 1949-1959, 82

Harvard L. Rev. 967, 970 (1969); and C’hO, supra note 3 at 275.11 Bodde and Morris, supra note 4 at 113.12 Cohen, supra note 8 at 1213.13 Lubman, supra note 8 at 1296.


could be asserted by one of the disputants against the other as well as everyone else in society, including the state. The focus of his concern, rather, was on how the existing law, whether in the form of Fa or of Li, might best be applied to maintain social order and defend the political status quo. Enlightened judicial self-interest often came into play as well, the magistrate being under an obligation to catch, prosecute, convict and punish an offender successfully.14

If there is one shortcoming which distinguishes the Confucian system of law, it is a failure to develop a justice system which could deal fairly with those uncultured people who, unlike the great sage Confucius himself presumably, were not always guided by ethics and reason in their day-to-day activities. In the courtroom, the noble philosophical norms of Confucianism all too often translated into little more than an arid dogma, an ideology justifying a refiisal by the bench to deliver impartial justice dispassionately. The true quality of justice in traditional China, especially in its later stages during the Imperial period, is typified in the statement by the Emperor K’ang Hsi (1622-1722): “I desire ... that those who have recourse to the tribunals should be treated without pity, and in such a manner that they shall be disgusted with the law, and tremble to appear before a magistrate.”15

The extent to which Confucian justice was preoccupied with asserting the power of the state and with punishing those who violated its ethical norms or positive laws is most clearly seen in the criminal law field. Granted, an elaborate appeal process grew up wherein all but the most minor cases decided by courts of first instance - at the hsien or chou (department) level - were reconsidered by officials at higher levels, in some instances by the emperor himself.16 However, the criminal justice system was structured in such a way that once an individual was charged with an offence, he or she stood very little chance of gaining an acquittal.17 Torture was occasionally used on an accused person to extract a confession. Even when application of such a procedure did not yield the desired result of a confession, the accused party was presumed guilty until proven innocent. Needless to say, the accused individual did not have recourse to the skills of a defence attorney, to help in establishing his or her innocence or in preparing an effective defence.18

The harmful repercussions of the judicial preoccupation with punishing those who violated the state’s ethical norms or positive laws were felt most keenly by those powerless individuals who lived on the margins of Confucian society. The experi

14 See Cohen, supra note 10 at 970. “It is somewhat curious to European ideas”, wrote the French missionary M. Hue in the mid-nineteenth century, “to see a judge whipped for having made a mistake

15 Cited in T.R. Jernigan, China in Law and Commerce 191 (MacMillan & Co. 1905). Also cited in J.P. Brady, Justice and Politics in People's China: Legal Order or Continuing REVOLUTION? 35 (Academic Press 1982).

16 Bodde and Morris, supra note 4 at 112.17 For observations on acquittals by the Board of Punishments in Beijing, see id. at 181 -182.18 For observations on the judicial process in traditional China, see S. Van Der Sprenkel, Legal

Institutions in Manchu China Chapters 5 and 6 (The Athlone Press 1977); and Shao-Chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China; Analysis and Documents 7-9 (State University of New York 1985).


ence of one slave and his family from Fukien is illustrative. The slave had been drunk and disorderly, and was reported in 1818 to the court by a representative of his master, a Manchu prince, for exile in accordance with the law on such offences. The Board of Punishments for the Department of Fukien directed in their judgment that the slave’s wife and children should be deported to the frontier along with the offender, to serve alongside him as slaves to the troops stationed there. The Board of Punishments in the capital Beijing upheld this decision upon appeal, directing in their judgment that

hereafter, whenever a slave may be reported to this Board by his bannerman master for deportation, the slave’s wife and children are always to accompany him in accordance with the sub-statute, thereby preventing any possible recurrence of inconsistent and erroneous judgments.19

In effect, in a crime which could be committed only by a slave, collective culpability was substituted for individual culpability.

Nor surprisingly, fathers tended to be a little extra earnest - by Western standards, at least - in administering corporal punishment to their offspring, to ensure appropriate behaviour. Brothers and sisters, meanwhile, tended to be a little extra-zealous in asserting themselves as “brothers-keepers”. Minimally, they did not want their families, their village, or themselves for that matter, to suffer as a result of misdeeds by erring family members - at least no more than was absolutely unavoidable. More generally, they feared any contact with the justice system whatsoever, as a kind of gut reaction. In their minds, that system did not represent primarily a shield which could be used to protect them from the assaults of the anti-social forces in society. Nor did it represent primarily an impartial adjudicator which could be appealed to settle those unpleasant civil disputes which develop in day-to-day affairs. What it most clearly represented was an unwelcome intrusion - a rod which meted out punishments ranging from a prescribed number of strokes with a bamboo stick to death by strangulation.

In brief, a balanced reading of the documentary record reveals that the practice of judicial independence was not a feature of the legal system of traditional China. It should be mentioned at the same time, though, that the adoption of Confucianism in this period undoubtedly influenced how Chinese regard their justice system down to the present day. Most civil disputes and minor criminal matters, for example, are presently settled through mediation rather than litigation, under the watchful gaze of members of mass organizations such as urban street revolutionary committees, communes, residents committees, and production teams, as well as of relatives, friends, fellow workers and neighbours.20 The Confucian past’s influence, in fact, appears to have coloured the Chinese response to reforms instituted by the Deng

19 Bodde and Morris, supra note 4 at 221-222.20 See Leng, The Role of Law in the People's Republic of China as Reflecting Mao Tse-tung’s

Influence, 68 J. of Criminal L. & Criminology 356-373 (1977).

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leadership between 1978 and 1988. According to one Zhou Yi, a lawyer with a legal advice centre in Beijing in 1985:

People don’t like bringing civil disputes to the courts or to us unless they’ve got themselves really badly entangled. I suppose that is characteristic of us Chinese. And what we really do if they come is to mediate. Even court hearings are aimed at solving the problem at issue without any loss to anyone’s dignity.What we say is, “We welcome you to come here” ...We really do welcome everyone to come here to solve their problems instead of causing the grassroots units and the leadership trouble by going to a factory director or Party secretary to complain about a fight with the neighbours ...21 22

It is not necessary here to canvass in the same detail as above whether the practice of judicial independence became a feature of the legal system of early modem China. However, it should be mentioned at this point that some qualification of the gereral hypothesis advanced above might be necessary. In view of developments at the outset of the modem era, it is arguable that the Chinese leadership and intelligertsia did not fail to develop a division of powers doctrine suitable to Chinese circim- stances as suggested above. In 1911 the Guomindang (Nationalists), led by the father of the Chinese Revolution doctor Sun Yat-sen (1866-1925), overthrew the Qing (or Manchu) Dynasty. A republic modelled after the governments of the two

republican countries most familiar to Chinese intellectuals at the time, the Unted Slates and the Third Republic in France, was established in place of the overthrown monarchy in early 1912.“ The rudiments of a modem court system were established soon afterward.

While the new republic was founded on the basis of a separation of pov'ers doctrine, it is apparent that the reforms were largely inconsequential. Cer.tral authority in China soon collapsed, the new state being replaced in time by a cotirie of regional governments dominated by provincial warlords. In the decades hat followed, Chinese were plagued by constant warfare: civil war between the Guomindang and the CCP, until 1937; then war between China and Japan, until 1945; and then civil war again, until the Communist victory in 1949.

The Guomindang under Sun Yat-sen’s successor, General Jiang Jieshi,23 did manage to reunify the country in 1928, following a military campaign known as the Northern Expedition. Two decades later, though, the Guomindang still had not succeeded in establishing modem courts in more than one-quarter of all the counties in China.24 It is debatable whether the quality of justice actually declined after the

21 Zhang and Sang, supra note 1 at 193,22 For an account of the establishment of the Republic of China, see I.C.Y. Hsu, The RlS2 OF

Modern China Chapter 2 (Oxford U. P. 1983, 3rd ed.). Also see C.P. Fitzgerald, The Both of Communist China 43-54 (Penguin Books 1964). This section is reproduced in Republican Nationalism, War, and the Rise of Communism 1911-1949 21 -23 (F. Schumann and Oreille Schell eds. Vintage Books 1967).

23 Chiang Kai-shek. The current pinjin system of romanization of Chinese names is used in this essay. This system was introduced by the Chinese government in 1958, replacing the Wade-Giles system.

24 Cohen, supra note 10 at 978.


country entered its modem era, becoming even more arbitrary and more unpredictable than before. It is certain, though, that the quality did not advance. The United States government thus could complain in 1929 that “there does not exist in China today a system of independent Chinese courts free from extraneous influence ...”25

In view of developments following the establishment of the PRC in 1949, on the other hand, it is arguable that the Chinese leadership and intelligentsia did not fail to organize a state in which one wing might serve as a check on the other, as suggested above. Under the first Constitution adopted by the National People’s Congress in September, 1954, the legislative, executive and judicial functions were divided up between distinct institutions. Article 68 of this constitution accorded the judiciary a wide margin of independence: “In administering justice, the people’s courts are independent, subject only to the law.”26 This general principle of judicial independence was reiterated in procedural sections of the constitution as well, such as in Article S9.27 In addition, it was incorporated in the organic laws of the people’s courts, as well as in the people’s procuratorates, promulgated by the National People’s Congress on September 28,1954.28

These developments at the legislative level were accompanied by corollary developments within the judicial wing itself. A former legal secretary from Harbin gave an account of a case decided by the court he worked in in 1956, for example, which suggests that a bona fide judicial independence was emerging in China (at least in certain urban courts). His account is worth citing at length because it provides insight into a process of adjudication which evidently became widespread in China after 1978:

Hung was a railroad worker who in 1956 was discontented with his lot. His wages were low, and he was often criticized for being backward in his work.One day a “friend” who was visiting Hung’s room in Harbin saw a piece of paper on which Hung had written “Mao Tse-Tung (i.e., Mao Zedong) is dead”.The friend secretly picked up the paper and took it to the local public security station. After a brief investigation Hung was arrested and prosecuted for current counter-revolutionary activity.The president of the railroad transportation court assigned a judge to handle the case. After studying the file, the judge talked the matter over with the president of the court. The two of them were puzzled about how to dispose of the case.On the one hand, Hung had in effect cursed the Chairman of the People’s

25 Id. at 970.26 The People's Republic of China 1949-1979 A Documentary Survey Vol. 1 105 (H.C.

Hinton ed. Wilmington, Scholarly Resources Inc. 1980). Hikota Koguchi observes with regard to this article: “Article 78 of the 1954 Constitution prohibited for the first time interference in cases by any administrative organ, organization, or individual. However, neither the Constitution nor commentaries on it mentioned the applicability of Article 78 to Party interference. According to one commentator, this silence reflected the tension between the Party and the judiciary...” Koguchi, Some Observations About "Judicial Independence” InPost-Mao China, l Boston College Third World L.J. 195,196 (1987).

27 Hinton, id. at 105.28 These laws are reproduced in Fundamental Legal Documents of Communist China (A.P.

Blaustein ed. 1962)


Republic and the Party, and this could not be tolerated. On the other hand, Hung was a worker, he had no history of counter revolutionary activity, he had not circulated the statement in any way, and he had no counter revolutionary motive or purpose. He was simply a backward type who had lost his temper in the privacy of his home. Because of the difficulty of the case, the president of the court convened a meeting of the court’s adjudication committee, which was composed of all the judges of the court.After the problem was put to them the committee members agreed that Hung could not be considered a counterrevolutionary. But they were also of the view that he could not go unpunished. Several members suggested that he was guilty of defamation, a crime that was generally punishable by a sentence of from six months to two years of imprisonment, which seemed an appropriate punishment in the circumstances. A court secretary, who was a recent graduate of the Peking Political-Legal College and who, because of his advanced legal training, was normally invited to attend meetings of the adjudication committee, said nothing when the suggestion was first made. But during the luncheon intermission he consulted some materials on Soviet law that were in the possession of the court. He noted that both the criminal code of the RFSR and the leading text on Soviet criminal law stated that circulating was an essential element of the crime of defamation. When the committee reconvened he spoke up and pointed out that a serious legal obstacle to Hung’s conviction was the absence of any evidence of publication of the offensive words. The committee members were unreceptive to the idea of having to acquit the defendant on “a technicality”. But after patient explanation by the secretary and long discussion, the president of the court agreed that there could be no conviction without evidence of publication and that if the court failed to uncover such evidence, the case would have to be dismissed. With some grumbling the committee members acquiesced.The judge in charge of the case then interrogated Hung in a room at the public security detention house and later went to talk to Hung’s neighbours and co-workers but found no indication that he had expressed any (defamatory) views. Accordingly, Hung was released and was given a copy of judgment that dismissed the charge of counterrevolutionary activity and stated that what he had written had amounted to a “backward opinion” for which he had been appropriately criticized.29

As Jerome Alan Cohen observes, the “most striking aspect of this account... is its lack of any reference to the Party... [T]he judges decided the case in their judicial rather than their Party capacities ...”30

When an examination of the documentary evidence as a whole is carried out though, it becomes evident that this instance of judicial independence was in all probability a localized phenomenon, and not representative of general judicial

29 J.A. Cohen, The Criminal Process in the People’s Republic of China 1949-1963: An Introduction 487-488 (Harvard U. P. 1968). This quotation is reproduced in Cohen, supra note 10 at 986-987.

30 Id. at 987. This account also is striking evidence controverting the assertions of many critics that a prohibition against “thought crime” was an integral component of the Chinese justice system then.


practice throughout the land. Since the founding of the People’s Republic in 1949, the justice system, comprised then of the public security organs (the police), the procuracy (prosecutors and co-workers), and the courts, had developed with its operations supervised directly by the tribune of “the People”, the CCP. The People’s Daily explained in October 1954:

The people’s courts at all levels are subject only to the law. They must enforce the law in the public interest and not yield to any illegal interference. However, does this mean that a people’s court, since it can “administer justice independently,” is allowed to do whatever it likes? Can it ride roughshod over the people like the courts in capitalist countries? Of course not. A people’s court should likewise be strictly subject to the law. It should obey the people’s wishes and submit itself to the supervision of the people, the procuratorate, and the higher people’s courts ... Article 17 of the constitution provides that “all state organs must rely on the people, listen attentively to the views of the masses, and accept their supervision.” Under no circumstances should the people’s court assert its “independence” from the people and alienate itself from them, still less ride roughshod over them.31

Indications are that Party cadres exercised, at a minimum, a suspensory veto over the deliberations of police, prosecutors and judges throughout this period.

Beginning with the Anti-Rightist Movement of 1957-1958, moreover, the same year (1958) as the famous Great Leap Forward strategy was adopted by the leadership to guide the country’s transition into Communism, cadres intervened directly in individual cases being processed through the justice system with increasing frequency. The Bright Daily in Beijing related in April 1958:

Some people misinterpreted “independent administration of justice” as the independent will of certain judges in the judicial department. This is a very dangerous point of view. The constitution and the organic law of the people’s courts stipulate that “the people’s courts administer justice independently, subject only to the law.” This is a major principle of the legal system in China.Its spirit lies in shielding the people’s courts from illegal interference with their trials so that they can correctly strike at the enemy and protect the people. Nevertheless, some people take independent administration of justice to be “only the law commands respect.” They regard the power of the judicial organs as being the highest and even go so far as to reject party leadership, without reporting things to the party nor asking for instructions. If the party offers suggestions in regard to certain cases, they will see it as “making no distinction between the party and the government” and “substitution of the party for the government”. This kind of thinking is in fact a rejection of party leadership over judicial organs; it is an attempt to turn the enforcement of law into wilful action by judicial organs.32

While the incidence of direct intervention by cadres in the justice system varied after 1958, there are indications that this became regularized during the Great

31 People’s Daily, October 16, 1954.32 Bright Daily (Beijing), April 18,1958.


Proletarian Cultural Revolution of 1966 to 1976.33 Indeed, the procuracy was disbanded altogether in 1969. Fallen leaders such as the state President Liu Shaoqi, in the meantime, were attacked by Red Guards and other supporters of the mass upheaval for resisting the “leadership of the Party over legal work”.34

The institutional mechanism of Party intervention in the judicial process was a system of examination and approval of individual cases by Party cadres known as shuji pian. Under this system, the arrest, prosecution and sentencing of criminal offenders were guided by cadres in the local Party committee - and in many localities, by the Party Secretary responsible for political-legal affairs, the committee lacking the time and the energy to review every individual case themselves. One Chinese Communist observer described the process in the following terms:

Whether or not the facts of a case are clear, whether or not the evidence is convincing, whether or not the defendant should be subject to criminal sanction, and what criminal punishment should be imposed on the defendant - all must be sent to the secretary in charge of political-legal affairs of the local Party committee at the same level for review and approval. This is called the system of approving cases by the secretary.35

The decisions of the Party secretary on the case were then passed on to the relevant police authority, procurate office, or court for implementation.

The official rationale given for this intervention consisted of two main components. The first of these was doctrinal in nature. “The working class carried out its leadership of the state through its vanguard, the Party,” explained one official commentator in 1958. “Since the court is a state organ, the Party as a matter of course leads the court ...”36 This justification for intervention was little more than a restatement of the orthodox Marxist-Leninist principle that a Marxist party must remain at all times the advance guard in the revolutionary front in its country.37 Were the party to recognize limitations on its freedom of action, such as those which could be imposed by an independent judiciary applying what it discerned as the rule of law, the party would be hampering its efforts to guide that country’s transition from capitalism to socialist industrialism.

The second justification for intervention was practical in nature. The same official commentator went on to indicate that the Party authorities were not entirely satisfied with the manner in which many currendy presiding judges, some of whom

33 Franz Schurmann argues that “the Party has in effect supplanted the judicial^ as the instrument of law ...” F. Schurmann, Ideology and Organisation in Communist China 1980 (U. of California P. 1966).

34 U.S. Consulate-General, Hong Kong, SELECTIONS FROM CHINA MAINLAND MAGAZINES 23:625 (1968). These leaders also were attacked for advocating legal practices such as the application of equal justice to all regardless of their class background and for encouraging the use of defense counsel,

35 Cited in Leng AND CfflU, supra note 18 at 32.36 Cited in Koguchi, supra note 26 at 197.37 For a discussion of Lenin’s views, see N. Harding, Lenin’s POLITICAL Thought: Theory AND

Practice in 'the Democratic and Socialist Revolutions Chapters 6 and 7 (Humanities Press 1983).


had spoken out against intervention by the Communist Party in the adjudication process during the Anti-Rightist Movement of 1957-1958, were administering justice:

As shown by the facts, only the Party’s intervention in adjudication has made it possible to correct illegalities and to apply the law correctly. Party leadership is carried out through the Party organization within the court. All important judicial matters should be decided by the Party organization, including not only the problem of political ideology or policy, but also concrete cases.38

Party cadres were regarded in official circles as the only agents of authority in China at the time with a sufficiently high ideological level. Judges and other legal “experts” could not be vested with a full discretionary power in their respective fields of authority within the justice system because they were not “red” enough. “By correctly handling individual cases,” continued the same official commentator, “the Party can demonstrate how to carry out its policies and guidelines effectively. If the Party limits itself to passing on policies and guidelines, its leadership will become abstract and useless.”39

It is appropriate at this juncture to raise once again the central question posed at the outset of this essay: what developments gave rise to judicial independence in China after 1978? Having completed a review of the historical record, it is apparent that there are no historical precedents for the phenomenon. On the contrary, the country has a long-standing tradition of executive control of the judicial function, stretching back to the beginning of traditional China in 206 B.C. It also is apparent that attempts to reverse this trend during the modem era, the most concerted following the establishment of the Republic of China in 1912 and the establishment of the PRC in 1949, failed. Thus, were our inquiry to end at this point there would be solid grounds for concluding, as J.A. Cohen put it in 1969:

that judicial independence is the flower of special historical and cultural conditions that have prevailed in recent centuries in some of the major countries in the West, ... and that it cannot readily be transplanted into the radically different historical and cultural circumstances of China ...40

The answer to this question lies in an understanding of the events of recent Chinese history, notably in the Great Proletarian Cultural Revolution (GPCR). The product of Chairman Mao’s vision, this upheaval was essentially an officially sanctioned mass uprising against the Chinese Communist Party and state, designed to check the ascendancy of the bureaucratic leaders in Socialist China. This campaign ultimately went down to defeat. Even Mao himself was led to concede this in a poem he wrote for his close comrade-in-arms Premier Zhou Enlai in 1975:

Loyal parents who sacrificed so much for the nation Never feared the ultimate fate

38 Cited in Koguchi, supra note 26 at 197.39 Id.40 Cohen, supra note 10 at 1004.


Now that the country has become red, who will be its guardian?Our mission unfinished may take a thousand years.The struggle tires us, and our hair is grey.You and I, old friends, can we just watch our efforts be washed away?41

Soon after the Chairman’s death in September 1976, many of those officials who had been purged during the GPCR, the most notable among them being the current leader Deng Xiaoping, assumed control of the reins of state power. The “Gang of Four”, among whom was numbered Mao’s own wife Jiang Qing, meanwhile, and other close supporters of the deceased Chairman were arrested and purged.42

The events of the GPCR and the subsequent transition in leaderships after Mao’s death were to impact on the Chinese justice system from several directions. One was against the Communist Party cadres working within this system. As seen above, cadres came to play a central role in this administration of justice during the GPCR. Often such cadres found it necessary to decide individual cases according to their own lights, given the country’s lack of a criminal code and other basic laws. As a result, the perception developed in several regions of the country that an official’s will is the law. This perception was fanned by awareness of the abuses committed by cadres, which first became common during the GPCR after the collapse of centralized control throughout the country. The Minister of Public Security, Zhao Cangbi, thus could recall in 1978 how: “cadres (especially basic-level cadres) with the responsibility of administering the law ... have violated the laws, wantonly abused their powers, bullied the masses, and encroached upon people’s rights.”43 The justice administered by such cadres came to be seen as the product of privilege and social status bestowed by membership in the CCP.

At the same time as the events of the GPCR had inculcated in the minds of the Chinese citizenry lingering suspicions about cadres in the justice system in particular, other events had instilled a deep-seated distrust of political authority in general. Many of the country’s now rehabilitated leaders had been denigrated in the mass media as “freaks” and “monsters”. Often they had been depicted in much the same terms as the fallen Soviet Communist Party General Secretary Nikita Khrushchev and his successors, all of whom were said to have restored capitalism in the Soviet Union following the death of Joseph Stalin in 1953.44

Mao himself, who had managed throughout the GPCR up to the day of his demise to keep his own reputation intact, had subjected leading cadres to scathing attacks for their “revisionist” ideology and policies. In a letter written to his wife Jiang Qing

41 New York Times, September 10,1976, at A15.42 In ensuing years, the new leadership launched a concerted campaign to denigrate living

opponents of their rule. Their central attack was against Jiang Qing, whom they placed on trial for her “counterrevolutionary crimes” in 1981 and gave a suspended death sentence. See A Great Trial in Chinese History (Pergamon 1981).

43 Tao-Tai Hsia and K.A. Huan, Peking’s Minister of Public Security on Strengthening the Legal System 54, footnote 87 (Washington Library of Congress Law Library 1979).

44 For observations on Chinese perceptions of these Soviet leaders in this period, see Hsu, supra note 22 at Chapter 27.


in July 1966, shortly after the outbreak of the GPCR, moreover, the “Great Helmsman” of the Chinese Revolution had depicted the power struggle in epic terms as a struggle between the forces of Revolution and Counter-Revolution. He had gone so far as to suggest that if leading cadres such as Deng Xiaoping ever assumed control of the reins of power, this would spell the end of Socialism in China:

There are more than one hundred [communist] parties in the world. Most of the parties no longer believe in Marxism. Even Marx and Lenin have been smashed by them, much less we. I suggest that you should pay attention to this problem and should not become dizzy with success... What they want to do is overthrow our Party and myself ...45

The fall-off in the ability of the Party cadres at both the Central Committee and grassroots levels to command respect and obedience was compounded by an emerging legitimation crisis. As would become increasingly apparent in the decade following the closure of the GPCR, “belief in the Party and Marxism has literally collapsed.”46 The world-renowned astrophysicist and leader of the democracy movement, Fang Lizhi, thus could call attention in 1987 to the fact that official acts of state no longer could be effectively justified on ideological grounds:

Rather than winning adherents, the Party propaganda organs had become huge, self-defeating engines of disaffection, which caused more and more of the very young Chinese whose support the leadership needed to react almost automatically against anything the Party supported. Far from aspiring to, or being proud of, Party membership, a growing number of young Chinese now wished to distance themselves as much as possible from the Party ...47

What the post-Mao leadership most needed at this point, in view of these developments, were programs that could be used to consolidate their authority. One option available to them was to reform the justice system. For example, they could reduce the state’s reliance on those cadres at the local level as administrators of justice by extending judicial independence. In this way, as the Central Committee explained in an inner-Party instruction issued on September 9,1979, they could mobilize a constituency of new supporters to their side:

From now on, what is most important in strengthening the Party leadership over the judiciary is to earnestly guarantee the implementation of laws, to make the people’s court exercise their authority independently and see that they are not interfered with by any administrative organs, organizations or individuals. It is under the Party leadership that state laws are enacted and judicial organs established. Accordingly, everybody cannot help respecting the law and the

45 See Hinton, supra note 26, VOL. 3 at 548. This letter is reprinted in the following: Mao PAPERS; Anthropology and Bibliography 127 (Jerome Ch’en ed. Oxford U. P. 1970); 10 Peking Review 5 (August 11,1967); and Current Background No. 885 32 (July 31,1969). This letter was later released to the public.

46 Schell, China’s Andrei Sakharov, 261 The Atlantic 35 at 52 (1988).47 Id. at 47.


function of the judicial organ. This makes it possible to increase Party leadership and prestige...48

In the long term, such reforms would enhance the state’s overall ability to maintain law and order and organize social relations throughout the country.

This move to extend judicial independence and otherwise reform the justice system dovetailed nicely with the Four Modernizations program advanced by the leadership in 1977,49 and officially adopted by the Fifth National People’s Congress in March of the following year.50 The central goal of this program was the accelerated modernization and mechanization of agriculture, industry, national defence, and science and technology. The program was distinguished by its emphasis on an active foreign trade sector. It was also distinguished by its emphasis on the creation of “special economic zones”, which were designed to facilitate the transfusion into the country of investment capital, foreign technology, and management skills. These zones were reminiscent of the treaty ports first established in China during the nineteenth century, serving as special enclaves for foreigners and foreign businesses.

Past experience had indicated to Chinese that a correlation existed between the nature and quality of justice in China and the willingness of foreigners to do business on Chinese soil. If foreign businessmen were to be persuaded to expand their companies’ operations into China, then the Chinese government must be prepared to grant those businessmen an exemption from Chinese legal jurisdiction as was done during the nineteenth and early twentieth centuries. Alternatively, the government must be prepared to reform the legal system, in such a way that those foreign businessmen who did locate in China did not feel that they were placing their person or that of their employees, as well as their property, at risk in doing so.51

In theory, there was a third option available to the post-Mao leadership: to give instructions to officials in the justice system that a stay of proceedings should be entered in most cases involving foreigners. While it is not entirely clear whether this option was ruled out altogether, it is doubtful this practice was applied on a wide scale. For one thing, institution of such a practice undoubtedly would offend the nationalist sensibilities of Chinese and serve in the long run to decrease Party leadership and prestige. Given the post-Mao leadership’s priorities, the best approach was to institute the reforms necessary to project China as a stable and orderly

48 Cited in Koguchi, supra note 26 at 210.49 The push to implement the Four Modernizations was begun by leading officials such as Hua

Guoreng. See Hinton, supra note 26, VOL. 5 at 2735-2739.50 Details of this program were elaborated by DENG XIAOPING AND Hua GUOFENG in speeches

delivered to the National Science Conference in March 1978. See id. at 2743-2754,51 In 1929, for example, the United States government opposed the National government’s request

that the extraterritorial system be abolished on the grounds that “there does not exist in China today a system of independent Chinese courts free from extraneous influence which is capable of adequately doing justice between Chinese and foreign litigants.” Cited in Cohen, supra note 10 at 978.


society, one in which contractual and property-rights were respected and afforded protection under the law.52

The post-Mao leadership formally committed itself to the goal of restructuring the legal system at the Third Plenary Session of the Eleventh Central Committee in 1978. This commitment was spelt out in a communique issued on December 22:

In order to safeguard people’s democracy, it is imperative to strengthen the socialist legal system so that democracy is systematized and written into law in such a way as to ensure the stability, continuity and full authority of this democratic system and these laws; there must be laws for people to follow, these laws must be observed, their enforcement must be strict and law breakers must be dealt with.53

A series of major laws were enacted in ensuing years in furtherance of this goal, including: the Arrest and Detention Act, the Criminal Law, the Criminal Procedure Law, the Organic Law for Courts, the Organic Law for Procuratorate, the Provision Act on Lawyers and the Civil Procedure Law. In addition, the revival of the procuracy and the legal profession, both of which had been abolished during the GPCR, was guided by the new leadership.

At the same time as the post-Mao leadership instituted these reforms, they abandoned other legal practices which had grown up over the previous three decades. The most significant of the changes was the abolition of the Party examination and approval system discussed above. This was done by the Central Committee in an inner-Party instruction issued on September 9,1979:

The Party committees and the judicial organs must each carry out their own special functions. One must neither replace nor become confused with the other. For this reason, the Central Committee of the Party decides to abolish the system of examination and approval by the Party committees at all levels.Every case should be tried independently according to the laws of the courts with jurisdiction over the cases... The individuals concerned must firmly carry out the decisions and the rulings issued by the judicial organs according to the law ,..54

The Central Committee instruction directed that in the event of a disagreement between interested parties over a judicial ruling, the disagreement was to be settled by the court system rather than the Party: “If [the units and individuals] disagree, [those units and individuals] must lodge an appeal to higher judicial organs, and those organs are responsible for accepting an appeal ...”55

52 See Scott-Stokes, China Reports It Plans Trade Laws to Protect Foreign Investor Rights, New York Times 1 (1978); Butterfield, Peking Issues Rules to Lure Investment, New York Times A1 (1978); and Leng, The Chinese Judicial System: A New Direction in ORGANIZATIONAL Behaviour in Chinese Society 112,115 (S.L. Greenblatt et al eds. Praeger 1981).

53 Quarterly Chronicle and Documentation (October-December 1978), 11 The China QUARTERLY 172 (1978). For observations on this, see Koguchi, supra note 26 at 115-116; and LENG AND CfflU, supra note 18 at 3-5.

54 Cited in Koguchi, id. at 210.55 Id.


What was the immediate consequence of these reforms? One outgrowth was the emergence in China of classes of judges, lawyers and other legal professionals similar in many respects in their organization and concerns to their counterparts in the West. Take lawyers as an example. Their number grew from near zero during the GPCR to 35,600 by July 1988 - 15,600 full-time lawyers and 20,000 part-time “advisory workers” such as law school teachers and other legal specialists.56 57 “The concept of protecting one’s own legitimate rights and interests with the aid of lawyers,” observed the Beijing Review, “is beginning to take a firm hold in China

»57

Another outgrowth was the emergence in official circles of concern over growing legal problems which are already prevalent in the West. In the criminal law field, for example, official concern was expressed about the proliferation of “economic crime” since the early 1980s. The burgeoning caseload in this area necessitated a shift away from crimes endangering public security.58 In the civil law field, meanwhile, concern was expressed about the low regard many Chinese had for the sanctity of their contractual agreements. According to a report recently released by the Chinese Economic Structural Reform Institute, in 1987 one-twentieth of one billion economic contracts signed in China, or 500,000, ended up in court after being breached.59

What is the long-term impact of these reforms? Although many of them are not yet a decade old, some general trends can be discerned. In purporting to abolish the system of examination and approval of individual cases by Party committees, the Deng leadership acknowledged the need for greater independence of the judiciary. In doing so, it cleared the path for the politicization of deliberations within the adjudication process, possibly opening up a pandora’s box.

The hand of advocates of judicial independence and the rule of law was temporarily strengthened by the acknowledgement of the need for greater independence of the judiciary. When the Party officials asserted a right to supervise a case, or if deemed appropriate to intervene directly in the legal process, then these advocates were quick to criticize this as interference. The nature of the response by Wen Shi, a judicial officer in the higher court in Beijing, to such criticisms in 1981 is indicative of resentment in legal circles at such interference. Wen took note of the contention of critics that such intervention was “illegal” and that it was “detrimental to judicial independence”. “This is not true,” he countered, “... the leadership of our Party committee at every level aims to support and guarantee judicial independence. The Party committee rarely interferes wrongfully”.60

56 Cheng Gan and Yang Xiaoping, Lawyers with New Acceptance in China, 31 BEIJING Review 18-23 (July 11-17, 1988).

57 Id.58 Silk, Economic Crime in China, 15 The China Bus. Rev. 25 (1988).59 Jin Qi, The Legal Backup to Economic Reform,, 31 Beijing Review 18 (July 11-17,1988).60 Id. at 205.


The central issue in this debate was over the parameters of judicial independence, with the advocates of greater independence defining such independence in terms of the presiding judicial officer. The partisans of state authority, meanwhile, tended to define such independence in terms of the People’s Court as a whole. In this way, they could include judicial officials who did not hear individual cases - the president of the court or the chief judicial officer, as well as the bench. Wen Shi could respond to the charge by critics that the current “examination and approval system allows the president or the chief judicial officer to reject the decision made by the bench” with a flat denial:

The majority of opinions presented by the bench or independent judicial officer are approved by the president or the chief judicial officer. If conflict occurs between them and the bench, the president generally submits that case to the judicial committee for discussion. Neither the president nor the chief judicial officer can decide at his own discretion ...61

Indications are that Party officials based outside the court no longer found it easy to guide the deliberations of the court to a desired result. Observations made by Zhou Yi, a lawyer working in a legal advice center in Beijing in 1985, in fact suggests that such officials found this task increasingly difficult:

Although the courts aren’t places where you trade silver for lives any more, quite a lot of cadres still think they’re places where you can trade powers for lives. We always resist their pressures. The key problem is that so many people are ignorant about the law. I’ll give you an example. A Party secretary calls us and orders us not to defend someone because he’s a “bad person”. Well, if the factory Party secretary can decide that someone’s no good, what are the police, the procurator’s office and the courts for? We might just as well let the factory run its own court. Still, things are lot better than they were a few years back. Slowly we’re getting there.62

The confident tone of these remarks suggests that the days of intervention by Party cadres outside the justice system in the adjudication process were no longer treated as legitimate, and today are believed to be numbered.

At this particular juncture in Chinese history, however, any such assessment must remain purely speculative. As more becomes known about the repercussions of the dramatic political developments in China in 1989, the claim advanced in this paper - that a bona fide judicial independence has emerged in recent years - might require major revision.

In the spring of 1989, the country was visited by its most significant political crisis since the GPCR. The Deng leadership set itself on a course of political repression of many of the reformers who pressed for the extension of judicial independence in China, among other things, in response. The period of reaction formally began on May 20, when the authorities imposed martial law in parts of the

61 Id.62 Zhang and Sang, supra note 1 at 193.


capital in an attempt to contain demonstrations led by students lobbying for political reforms. The repression got under full sway with the "Beijing massacre" of June 3-4, when an unknown number of protestors were killed in Beijing by troops of the People’s Liberation Army.

The brutal and uncompromising stance adopted by the Deng leadership toward the reformers since then has raised the possibility that the fledgling independent judiciary is one of the casualties of the political crackdown. It is not entirely clear, for example, whether those dissidents who have been jailed, sent to labour camps, or executed since the night of June 3-4 were even granted a trial beforehand.63 As for those who have been granted a trial, according to Amnesty International many of them were subjected to beatings, torture and humiliations by security forces.64 Many reportedly were prosecuted under a special 1983 regulation which authorizes officials to suspend their legal rights in order to expedite their case.65

It must not be forgotten that originally the Deng leadership did not intend to establish a fully independent judiciary organized along Western lines. As one Chinese Communist commentator explained in 1979:

In spite of the proclamation of the abolishment of the system of having some cases examined and approved by the Party Committee, there still remains the idea that “the Party is superior to the law.” Therefore, it is very difficult to abolish this system completely. In some localities, a few cadres are dealt with by means of this system. Cases of far-reaching implications are handled not by the courts but by the members of Party committees. Moreover, there are even cases in which comrades of Party committees or units refuse to execute the legally effective judgments passed by the courts, or attempt to change those judgments.66

In all probability many of the dissidents who have been jailed, sent to labour camps or executed recently were dealt with by the army and police at the instruction of Party committees, rather than courts of law. The recent shifts in the legal system suggest a possible revitalization of the examination and approval system, with Party officials rather than the judiciary guiding the administration of justice in many cases.

If this is not the case, then it is probable that the Chinese bench has abandoned its independence of spirit in practice. The capitulation might have taken either one of two forms. The judiciary might have resigned itself, on the one hand, to rubberstamping verdicts which have been suggested by authorities based outside the court in advance. On the other hand, individual judges might have come to rely on their own political sense, rather than their sense of justice in the cases arraigned before them, to arrive at decisions which are in accordance with their reading of the will of the political authorities.

63 The Globe and Mail (Toronto), July 14, 1989 at A2.64 The Globe and Mail (Toronto), August 30,1989 at A3.65 Many were denied access to their family, to a lawyer, or to the bill of prosecutions prior to trial.

The Globe and Mail (Toronto), July 14,1989 at A2.Cited in Koguchi, supra note 26 at 200.66


The judicial incentive to revert to the familiar and overtly political role as handmaiden of the Party committees is great. By dealing firmly with protestors, individual courts serve the interests of several constituencies in the Chinese power structure simultaneously. At one level, they help to deflate support for a protest movement which only recently enjoyed considerable popularity throughout the country and at all levels of society. The imposition of death sentences for political offences proves to be particularly effective in this regard. In this way, the courts aid the Party authorities and the military in restoring law and order throughout the country. At another level, they deflect official criticism away from the operations of the justice system, and in this way preserve for the bench the greatest freedom of movement possible in these crisis-ridden times. At a third level, they deflect official scrutiny away from the internal affairs of their own courts, and thereby better ensure their own self-preservation. The atmosphere of fear and suspicion currently pervading the land undoubtedly conditions prudent judges to realize that it is not in their career’s best interests, nor in the best interests of the careers of their friends and associates, to be seen as secretly sympathizing with the “counterrevolutionaries” arraigned before them.

An examination of the evolution of the Chinese justice system, in conclusion, reveals that the Chinese judiciary has been accorded a surprisingly wide margin of independence in deciding individual cases in recent years. There are precedents in the Chinese past for current legal institutions and practices such as mediation. However, there are no similar precedents for the phenomenon of judicial independence. On the contrary, the country has a long-standing tradition of executive control of the judicial function. One must look to recent Chinese history, in particular to the GPCR and the subsequent transition in power to the Deng leadership, to appreciate the origins of this new Chinese phenomenon. To legitimize their own rule, and simultaneously to facilitate the implementation of general state policy, the new leadership found it incumbent for the first time in Chinese history to institutionalize judicial independence.

It is apparent that while Chinese judges are increasingly independent at an administrative level, the country still lacks a fully independent judiciary along Western lines. What has emerged in the wake of the major legal reforms instituted since the late 1970s is, at best, a “qualified” rule of law; the Communist party still reserves a discretionary right to intervene in the judicial process. A presumption has grown up in China that judicial independence should be respected by Party cadres. This serves as a restraint (albeit not a constitutional restraint) on executive intervention in the adjudication process. It remains to be seen whether this presumption can withstand the gale force winds of executive intervention which undoubtedly have assailed the country’s judiciary since the Beijing incident of June 3-4,1989.