China strengthens the judiciary not the rule of law

The fourth plenum of the 18th Chinese Communist Party (CPC) Central Committee ended on 24 October 2014. For the first time in the history of China this important party session was devoted to the rule of law. Considering that the country is ruled according to the one-party system without separation of powers, the event has led many to hope that time has come for China to initiate her path toward constitutionalism and democracy.

Indeed, the importance of this high-level meeting can be compared to the third plenary session of the 11th Central Committee held in December 1979 when Deng Xiaoping announced the opening-up policies. On that occasion, Deng made it clear that at least a Soviet-style legal system would be indispensable because without law, it would be impossible to re-establish State authority throughout a country laying into the moral and material ruins following the Cultural Revolution. Moreover, he had understood that laws would be indispensable for attracting foreign direct investment and technology transfer. Thus legal reforms had started in China with a peculiarity with respect to many other countries: the primary motivation for undertaking legal reforms in China was economic, and it was not a question to bring the rule of law to the Chinese people at least in the Western sense of separation of powers, human rights and democracy.

In between these two historical events, rule of law appeared a very few times in the government agendas, moreover never in position of pre-eminence as at it is the case of this October’s session, with only one exception. In 1999 the concept was endorsed by adding the following sentence to Article Five of the Constitution: “The People’s Republic of China practices ruling the country in accordance with the law and building a socialist country of law.” After that the government focused back on economic growth, and the rule of law did not have again the centrality it has gained in recent times.

What has happened? The Communist Party has now other priorities beyond economic growth. Its main concern is ensuring stability which is threatened by an increasing income gap between rich and poor and by the widespread corruption among local officials who abuse their powers for personal gain. The enforcement of existing laws by a more competent and, more independent and less corrupt judiciary – rather than the adoption of new laws – has become in the last years a top priority that the leadership wants to address more resolutely and without delay.

In fact while progress was achieved with respect to the 1980s and 1990s when cases were adjudicated by former police officers or decommissioned military officers without legal training, much more needs to de done. The percentage of graduates from law schools, which has increased over the years, all too often have no practical legal experience before joining the courts in their 20s and, moreover, they have to cope with an expanding workload. In fact, according to the Supreme People’s Court, in 2013 Chinese courts accepted 14.2 million cases, including appeals, retrials and enforcement hearings: a 7.4 percent increase compared to the previous year that obliges judges to handle an average of 750 cases a year. The main concern, however, is related to the perception of corruption: if  Chinese believe that judges, prosecutors and police can be bribed, or their decisions influenced by officials who control their careers and budgets, the stability and growth of the society is undermined.

The October plenum has essentially sought to address this very specific problem and has adopted the following measures. Firstly, it has addressed the territorial competence by basically creating judicial districts that do not overlap anymore with administrative divisions. In this way local party leaders have less opportunities to interfere in the judicial process. Secondly, and still to avoid interferences, it has established circuit courts whereby judges can now hold sessions at several different locations for pre-specified periods of time. Thirdly, measures have been adopted to strengthen judges’ training, their supervision and punishment as well as to increase their salaries, to bring their appointments, and promotions, and the courts’ budgets away from local authorities to avoid corruption and undue pressure.

In 2013 Chinese courts accepted 14.2 million cases, including appeals, retrials and enforcement hearings

Here the plenum stopped in its reform efforts and fell short of addressing the key issue that prevents the judiciary from becoming independent and China from achieving more progress towards the rule of law. The Political and Legal Committees which are present at any level in the government have not been abolished and their representatives may continue interfering with the judicial process if they decide to. Moreover, the plenum failed to address criminal law, the system of rules which most needs revision if work on rule of law is to be truly effective.
It is exactly these measures that have been left out from the plenum’s deliberations that elucidate that the party was not aiming at introducing rule of law at this stage of the Country’s development. The real intent was another one: strengthening the judiciary to reinforce central power over local officials who, through corruption, abuse of power and ignoring Beijing’s directives, damage the party’s reputation.
Nevertheless, even if this fourth plenum did not bring about the landmark changes hoped for by many in the West, the outcome of this important communist conclave must not be discarded as it definitely improves the Chinese legal system. In fact, and if the announced measures will be implemented as announced, the plenum has addressed a sense of lack of justice among the majority of Chinese who can now expect a betterment in the way legal cases are handled.


The author

Giovanni Nicotera, Attorney at Law, is a Technical Advisor at the Vienna International Justice Institute based in Austria. Previously he served with the United Nations Office on Drugs and Crime (UNODC) in different capacities and lately as its head of the office in the People’s Republic of China.