Tuesday, March 19, 2013

Judicial Independence Debuts in Contentious SPC Work Report

Chinese People’s Political Consultative Conference delegate Wang Junfeng (right) discusses the "Two Meetings." Photo credit: legaldaily.com.cn

One of the major events during the annual lianghui—plenary sessions of the National People’s Congress and the Chinese People’s Political Consultative Conference (CPPCC)—is the day when the heads of the Supreme People’s Court and Supreme People’s Procuratorate (commonly referred to as the “two supremes”) present their work reports to delegates assembled in Beijing. Though short on detail, these overviews of the work done by the national judiciary and procuracy can still help to identify aspects of the legal system that are given special emphasis in China as well as those areas that might be given special priority for future reform.

The reports presented this year by outgoing Supreme People’s Court (SPC) President Wang Shengjun and Supreme People’s Procuratorate Procurator-General Cao Jianming, who will serve a second term, focus on the accomplishments of the previous five years and set out an agenda for their successors for the coming year. To many casual observers, these work reports often seem replete with empty rhetoric and slogans. But those who look carefully can sometimes discern new phrases and subtle shifts in emphasis that may signal important future policy directions.

Such speculation was the subject of a recent interview conducted by the newspaper Legal Weekly with CPPCC delegate and chairman of the All-China Lawyers Association (ACLA), Wang Junfeng. At issue was how much to read into references to “judicial independence” in this year’s SPC work report—especially in light of pronouncements made earlier by new Chinese Communist Party General Secretary Xi Jinping about the importance of governing in accordance with the law and upholding the independence and fairness of the judicial system.

Supreme People’s Court President Wang Shengjun delivers the court's work report during the National People's Congress. Photo credit: China.com.cn

This expression of commitment to judicial independence by SPC President Wang Shengjun is notable, especially considering that many observers feel that under his tenure political control of China’s courts increased and earlier progress towards a more professional, independent judiciary stalled or even eroded. As evidence of dissatisfaction among lianghui delegates, the SPC report was one of several government work reports receiving the most opposition votes it has seen in five years and received more opposing votes than any other government work report, with 2,218 yeas, 605 nays, and 120 abstentions.

Wang Junfeng is clearly hopeful that new leadership in the party and the courts will change the atmosphere of “neglect of rule of law” that he sees as having brought many negative consequences to China over the past decade. But one can sense continued uncertainty in his optimism, as he insists that commitments to judicial independence and rule of law be more than just slogans.

Judicial Independence Shouldn’t Be Mere Slogan

Interview with CPPCC delegate, ACLA president Wang Junfeng

Chen Xiao and Gao Yuan, Legal Weekly
March 13, 2013

Legal Weekly [hereafter, “LW”]: We’ve noticed that the issue of courts exercising independent, impartial judicial power was mentioned twice in the sections of the Supreme People’s Court (SPC) report discussing the problems and difficulties faced by courts and the section on this year’s work agenda. Legal academics have been talking about this problem for a long time, but past reports seem never to have clearly raised the issue. What do you think about its being raised now?

Wang Junfeng [hereafter, “WJF”]: I think it’s great to bring up (independent judicial authority)! We legal professionals feel extremely gratified to see the SPC report clearly raise this issue. Actually, we knew that it would be mentioned sooner or later. From the beginning of opening and reform, independent judicial authority was one of our important standards. Independent judicial authority is one of the most important cornerstones of a rule-of-law society.

Over the past decade, China’s economy has been very successful and there have been many changes in all industries. We feel extremely proud, as if we had experienced it ourselves. But there’s no doubt that a major regret is the neglect of rule of law. In an era when the economy developed so quickly, [this neglect] is really astonishing.

But lately we’ve seen General Secretary Xi Jinping mention upholding the authority and protecting the dignity of the constitution and say that we ought to hold firm to the independence and fairness of the judicial system. Legal academics and professionals know that this is the way it should be. Of course it shouldn’t merely be mentioned. Our judicial work, including our legal professions must always attach importance to the professional and independent nature of the law. Only by remaining firm on this point will we have true rule of law.

LW: What do you think led [SPC] President Wang Shengjun to mention this problem in this year’s report? What expectations do you have as a result?

WJF: First, the new generation of central leadership is vigorously promoting governance in accordance with the law, which is a fundamental basic plan for China. Because General Secretary [Xi] mentioned this earlier, it’s logical for President Wang to mention it in [the SPC] report. If it continued to go unmentioned, how could [the report] reflect the importance of the credibility of our judicial system? To a great extent, the decline in credibility of the judicial system is a consequence of the inability to uphold judicial independence.

Bringing up the issue after 10 years makes me feel gratified, but that the same time I feel...I don’t know how to put it.

From another angle, it reminds us that this is not a slogan. No matter what changes take place in society, they must not shake the cornerstone of judicial independence.

I anticipate that this is not merely a slogan and hope that independent judicial authority can truly be put into effect in practice.

LW: President Wang mentioned in his report that the problems of difficult litigation and implementation have not yet been fundamentally resolved. As a lawyer, what is the situation? Does the All-China Lawyers Association have any data that reflect these problems? Can you give us one or two examples drawn from your practice [as a lawyer]?

WJF: The difficulties of litigation and implementation are major problems.

On the one hand, the difficulty of litigation has to do with the inability to strictly operate according to legal procedures during the court’s trial process. Sometimes the difficulty can be seen in cases where one side is in the right but cannot win their suit. Other times, it’s difficult even to file the case. In general, judicial work is affected by all sorts of factors that shouldn’t exist, problems with judicial independence, problems with judges themselves, etcetera.

Every year there’s talk of the “difficulties of litigation and implementation.” I sweat with anxiety for China’s judicial system. This shows that even though China has made many advances in rule of law, there is still a long way to go to reach ordinary people’s ideal of rule of law.

So, I look forward to this being improved under the new central party leadership and their promotion of governance in accordance with the law. Many people in legal sectors said they felt there was more hope for the nation after hearing General Secretary Xi Jinping’s speech, first of all, that the spring of rule of law had arrived. Once the spring of rule of law arrives, the glory of a nation can further progress.

I hope that when judicial independence is realized and China’s rule of law progresses further that President Wang or [future] court presidents will [be able to] speak less of these kinds of problems at the NPC and allow ordinary people to live in a bit more dignity. This is what we look forward to.

As far as the difficulties of litigation and implementation are concerned, I don’t have any relevant data. But the data isn’t that important. Now that President Wang has spoken of how difficult things are in front of the NPC, is data really that important?

LW: In the agenda for this year’s work, the SPC report spoke of the need to build up the credibility of the judicial system. This phrasing also seems rather new. Based on your practical understanding, what aspects of the realities [of the judicial system] is this aimed at? From a lawyer’s perspective, how should the credibility of the judicial system be strengthened?

WJF: Ordinary people know what it means to talk about the credibility of the judicial system.

I think that to restore the credibility of the judicial system, it’s important to eliminate bureaucratism. Actually, being a judge is an extremely sacred and honorable position, one with the authority to adjudicate according to national laws and regulations. We must eliminate bureaucratism from this profession, reduce the air of “officialism,” and increase the spirit of professionalism.

First of all, how can there be credibility when there is still no judicial independence, when bureaucratism is so severe, and when there are so many ranks among judges? In foreign countries, judges are called judicial officers and represent fairness. In China’s feudal, traditional consciousness, [the word “judge” was created by] taking the word for “law” and adding “official” at the end. I encourage the media and the courts internally to stop calling [judges] “officials” in the future. “Judicial officers” or “presiding judge” is more appropriate. When you add the word “official,” it not only brings with it seriously feudal ways of thinking, it also desecrates the position of judge itself by wiping out its specialized and professional characteristics. In the feudal society of the past, bureaucrats judged cases; now, [this is done by] judicial officers and presiding judges. If we stop calling them “officials,” perhaps it will enhance the credibility of the judicial system.

There are many factors affecting credibility: the inability to adjudicate independently, interference of all types, various disciplinary problems and derelictions among judges themselves, insufficient respect for professionalism, and so on. But as long as we stand firm on judicial independence and accept society’s public oversight, I think this problem shouldn’t be difficult to resolve.

LW: Ordinary people attach considerable importance to the fight against corruption. Recently, the anti-corruption winds have been blowing rather fiercely. Before they came out, we had hoped that the [SPC and Supreme People’s Procuratorate (SPP)] reports would make a point of describing the results and future plans on this subject, but it seems that not much ink was spilled on this account. Why is this?

WJF: The fight against corruption has already been mentioned many times. I think it’s normal that it wasn’t mentioned and that the court didn’t mention it. When corruption cases occur, the courts should punish them in accordance with the law. Moreover, I don’t think that the court report needs to mention such things as preserving growth or maintaining stability. The law is the law; when [a case] comes, you try it. When courts’ actions follow society or politics too closely, there will be doubts about judicial independence.

The legal system and the courts are like high mountains, standing in the distance. Its ordinary operations are to uphold fairness, punish crime, and support society. It shouldn’t be affected by the blowing wind or the falling rain. Courts ought to stand firm and adjudicate fairly and independently in accordance with the law and regulations and adhere to its professional spirit. That’s enough.

I personally believe that judges are chosen through a certain process and are endowed by the law with a special mission. It’s enough for them to handle the cases they’re given to adjudicate and stick to their responsibilities to the law.

LW: Please share your thoughts on the [SPC and SPP] reports, including positive aspects, what the highlights were, where they were lacking, and your expectations as a lawyer.

WJF: The [reports] explain clearly to the public what work was done in the judicial system over the past five years and what things were achieved. As in the past, I feel that for the most part the reports were factual and honest.

The rare thing here is that we saw that the [SPC and SPP] did not avoid the problems they face. We also saw the efforts being made to restore the credibility of the judicial system.

However, we know that legislation is not an end [in itself]. Laws are meant to be enforced. On this point, lawyers, police, prosecutors, and judges all share the same goal of ensuring that state legislation is truly and correctly enforced. That is the ultimate purpose of legislation and the ultimate objective of the state’s development of rule of law.

What we want to see from the court and procuratorate reports is not only that they say a lot, but even more so we want to see how much they have done. We hope that in the new era of national development we will be able to see the effect of rule of law in all areas of the state. Over the past decade, neglect of rule of law has brought negative consequences: corruption, loss of credibility, a growing gap between rich and poor, poisoned milk powder, collapsing buildings, and so on. I hope that society will not make this mistake again.

Over the past decade, China’s economy developed so fast yet the unfortunate neglect of rule of law brought about consequences. The entire nation should reflect on this and not allow ourselves to make this mistake again. We cannot afford to.

It’s good for us to bring up the issue of independent judicial and prosecutorial power, but we still don’t know how much we can achieve or how quickly. Based on the hopes expressed in [Xi Jinping’s] words and the expectations we legal professionals have, all lead to the hope that the springtime of rule of law could be approaching.