By Zhang Liangmin
The Current Party and Judicial Policy Background
During Hu Jintao’s presidential term, the China Communist Party (CCP) has further tightened its control on the judicial system. This is consistent with Hu’s approach to governing. President Hu confronts the increasing protests and riots all over China, by strengthening the internal discipline of the communist party with the goal of building a party with more power.
This approach and President Hu’s other populist views cater to many ordinary Chinese and have a great influence on judicial policy, especially after the appointment of Wang Shengjun, the new Chief Justice of Supreme People’s Court (SPC), in 2008. Soon after his induction, Wang advocated publicly the “Three Supremes”: The supremacy of the party, of the people, and of the constitution and laws.
To make this principle more specific, in many public speeches and symposiums with judges from all level courts, SPC C.J. Wang stressed the priority of mediation over court rulings in civil cases and judges’ “overall awareness” in maximizing harmony and stability of society.
As such, when these notions are put into practice, the effect becomes closely linked to a judge’s career advancement, official honor and compensation. The failure to maintain the stability may cost a judge career.
The Most Emergent Issues Arising from the Judicial Policy
A. The Rule of Man
If it is the political leader rather than the court that has a final say in a case, it is not a rule of law, it is a rule of man.
The current judicial policy actually imposes a political mission on the court, which is to maximize social harmony and subordinate the law into policy. The Local CCP Committee for Political and Legal Affairs (CPLA), who are in charge of the local police, prosecutor's offices and courts, would be held responsible by its superior party committee if its mission to sustain social stability is deemed a failure.
Accordingly, every regional government or party is concentrating on the effort to extinguish a citizen’s petition to central government or party. Consequently, the local CPLA will hold a judge responsible if one party of that judge’s case petitions frequently to the central government or central CCP or acts in a way that catches central power’s attention.
As a result of the huge political pressure from CPLA, a judge may brief his case to his department head and let the head decide the case so that judge can avoid any potential responsibility. If the head is also afraid of being held responsible, he will ask the local CPLA for a decision.
Accordingly, the political mission imposed on the court and the corresponding accountability system is ruining the judicial independence and the rule of law. The governance is at the arbitration of a person. It is a regressing back to the rule of man.
B. Deprivation of Citizens’ Trial Rights
The deprivation of citizens’ trial rights on sensitive issues remains draconian in China. Now, it has spread to the civil disputes between individuals. SPC Chief Justice Wang advocates mediation in civil cases. This encourages regional courts to deny a citizen’s filing for a case. Due to the pressure from the SPC and the incentive to a career promotion, judges urge the settlement of disputes outside the court.
While stressing the priority of mediation over court rulings, the SPC intentionally neglects China’s tragic legal phenomenon that judges or parties mediate and reconcile in bad faith.
C. Erosion on Justice As Well As Good Citizenship
The deepest concern of the current judiciary policy in China is that citizens may turn their back on the court system and that society would experience a decline in moral standards.
This system rewards corruption. As the government is sensitive to society’s stability, they urge the court to settle disputes quietly rather than justly. The popular notion in civil society now is the “more loud noise one makes, the more benefits one would get.”
In civil cases, where a party to a case acts radical to get a judge’s attention and get them afraid of political repercussions for failing to sustain social stability, the other party who has a justified claim may lose the said case. Hence, the judge has an incentive to award judgment for the party who may jeopardize his career, rather than for the party with a justified claim. That pushes citizens, whether with justified claims or not, to act unreasonably and irresponsibly.