Call for Independent Courts Won't Mean Real Change in China: Lawyers


2013.10.30
china-supreme-court-2006.jpg A file photo of the Supreme People's Court building in Beijing.
AFP

Chinese lawyers have welcomed a call for greater judicial independence from the country's highest court but say the practice of allowing powerful committees led by the ruling Chinese Communist Party to make key decisions affecting courts and their cases is unlikely to end soon.

China's Supreme People's Court called in a paper published on its website this week for an end to corruption and official interference in court decisions throughout the legal system.

Issued just days ahead of a key political meeting next month, the paper calls on the Party to "resolutely implement the courts' independent exercise of judicial authority based on constitutional principles, and resolutely resist all forms of local and departmental protectionism."

China's leadership should also seek to "eliminate power, money, allegiances, relationships, and other extrajudicial disturbances" from the judiciary, it said.

Framework lacking

Beijing-based lawyer Li Jinglin said China currently lacks a clear legal framework for judicial independence.

"If you flip through the Constitution, and the laws governing the organization of courts and procuratorates [prosecution services], there are no definite rules there from a legal point of view," he said.

"The judicial organs all have Party organs above them, managing them."

Li said the possibility of independence for China's courts depends on a large number of factors, including local networks of power and personal relationships, known in Chinese as "guanxi."

"Personnel and financial decisions related to local courts are all made by local [government and Party committees]," he said.

"Perhaps the judicial officials have relatives in the government."

Separation of powers

Meanwhile, rights lawyer Wang Yajun said the opinion from the Supreme Court didn't necessarily call for the separation of judicial, executive, and legislative powers commonly seen in democratic models of government.

"What they mean is that the courts should be free to exercise their independent judgement under the aegis of the local Party committee," Wang said.

"I think this is a subtext that has very little to do with judicial independence."

He said no genuine judicial independence could exist in China without reforms of the political system.

"This is really a fundamental political change [you are talking about]," Wang said.

"A system in which there are inherent and mutual checks and balances would be somewhat better," he added.

Taboo topic

According to former top party official Bao Tong, currently under house arrest at his home in Beijing, judicial independence is clearly listed as one of the "seven taboos" of the current administration under President Xi Jinping.

Citing a secret document issued by the Party last year, Bao said judicial independence is among a list of seven topics—universal values, press freedom, civil society, citizens' rights, the historical mistakes of the Chinese Communist Party, the financial and political elite, and judicial independence—considered taboo for public discussion.

Reported by Wen Jian for RFA's Mandarin Service. Translated and written in English by Luisetta Mudie.

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