Commentary | 18 May 2017

China's legal reforms are far cry from Western-style justice

Originally published in the Nikkei Asian Review

Originally published in the Nikkei Asian Review

China's Supreme People's Court, the country's highest, announced a five-year plan for reforming the judicial system in 2014 and produced two white papers around such reform two years later. While these changes promise more transparency in judicial decisions, better appointment processes for judges and greater protection of local courts from political influence, they should not be seen as a move by China toward adopting Western-style notions of justice.

Since President Xi Jinping came to power, China's judicial system has undergone a series of reforms. The presumption among many outside of China is that these are small steps toward a more comprehensive overhaul of what is seen to be a fundamentally flawed legal system based not so much on "rule of law" as "rule by law." The difference between these two concepts is that the former suggests the legal system rules over everyone equally, whereas the latter implies that the law is wielded as a tool by those in power to govern and manage as they see fit.

But the current reforms to the judicial system in China should not be seen as the first tentative steps toward rule of law as that concept is understood in the West. The party has no intention of subsuming power under the law. The judicial system is being tweaked, but not in a way that fosters a true separation of powers -- a concept publicly denounced by the Chief Justice of the Supreme People's Court in January.

Currently, the Chinese legal system is one in which individuals would only consider accessing the courts as a last resort. The legal system works through networks and relationships -- it's all about who you know. If you know the right people, chances are you won't need to take the issue through the court system. If you don't know the right people, chances are you will lose in court precisely because you've had to resort to it.

The concept of "petitioning" the central government is one example of how everyday Chinese people eschew -- or are left behind by -- the court system. Outside a Beijing United Nations building, people of all ages gather to present their grievances, having failed to be heard by their local, county, and provincial authorities.

Some days it's just a scattering of people, other days there are huge crowds. Some days they sit quietly in the gutter, holding signs in Chinese; sometimes they shout or chant, or thrust papers at foreigners entering the U.N. compound. At times some very desperate people try to set themselves on fire, or drink poison, to get the attention of the authorities. And the authorities are paying attention. There is a strong police presence, and buses are often waiting to clear away the petitioners.

The Chinese government stopped reporting the number of mass petitioner incidents in 2010, when they numbered 180,000. It is unlikely that the number has dropped much since then. Mass petition protests are launched in relation to a host of economic and social issues, including land disputes, where property has been seized without consultation, consent, or fair compensation. Women form the majority as their rights are often ignored in land disputes. Social welfare, healthcare, and environmental degradation are other problems that trigger mass protests.

Affluence for peace

There is no doubt that those in power are aware of the threat to stability these mass incidents pose. Based on the tacit social contract following the Tiananmen Square protests, the Party's right to rule rests on ensuring the continual improvement of people's material wellbeing. Many of Xi's plans are designed precisely to ameliorate poverty and inequality in rural areas.

But one of the key challenges in China's legal system is the willingness of local governments to interfere with the outcome of a trial to protect their own various interests. The current suite of legal reforms is designed to begin providing Chinese people with a sense of confidence that they are protected by law if their wellbeing has been unfairly challenged.

One set of reforms seeks to sever the connection between judges and local political interests. However, as Chief Justice Zhou Qiang made clear earlier this year, there is a distinction between "judicial independence" and "independence of the judiciary." The reforms state that judges should be independent, and their decisions should be transparent.

However, the judicial system as a whole, according to the Party, will never be independent as it will remain the overarching arbiter of justice. As such, people's access to justice will likely continue to depend on who they know.

Another of the reforms is aimed at ensuring something Western justice systems would take for granted -- that the person who hears the case is the person who ultimately decides it. Currently, one way in which the connection between hearing and judgement can be severed is when a particular case is deemed to be too ideologically or politically sensitive for the judge who heard it to decide it. As a legal expert in Beijing explained to me, in these instances, the case is referred to an external committee of Party members (the judge is most likely also a Party member) to determine the outcome.

Judicial independence is a key Party and government reform goal, but any changes are fundamentally constrained by political will, as well as by limited resources. As my legal contact in Beijing put it, the judicial reforms are more like internal guidelines for a corporation -- the company makes a product, the product (in the company's eyes) is fine, the company just wants to get better at delivering it.

That is to say, the Chinese Communist Party remains convinced that China's overall direction is correct. This is highlighted in Xi's 2014 book in which he stated that the policies of the Party and the laws of the State are fundamentally the same thing. Both reflect the people's will, and should be applied in service of them.

The reforms to the Chinese judicial system illustrate a broader trend in China's immediate future. We must not presume that China is on the path -- never mind how winding and bumpy -- to adopting Western-style liberal institutions, or that it plans to tread that path at a later time. China has no interest in doing so. It is pursuing its own modernity, with very Chinese characteristics.