China’s Supreme People’s Court within the ‘political-legal system’
China’s Supreme People’s Court within the ‘political-legal System’
Shumei Hou and Ronald Keith
Hirschl’s ‘judicialization of politics’ argues that in Asia within the last two decades, court intervention into ‘deadlocked politics’ is ‘less exceptional’ and that courts are asserting independent political personality through judicial review. This approach looks for examples of court intervention in ‘pure’ or ‘mega politics’ that influence ‘core regime legitimacy and collective identity’ (Hirschl 2006: 721).
In China, however, heavy politicization of the judiciary is more the rule than the exception. Currently, there is, for example, a revived exercise of leadership by the Party Central Committee’s Legal-Political Committee (zhengfa weiyuanhui) over China’s Supreme People’s Court (SPC). The strength of such political leadership has varied over time. During the Jiang Zemin years of Chinese Communist Party (CCP) leadership there was less political intervention, whereas, under the more conservative Hu Jintao leadership, there has been more political intervention. On the other hand, there have been instances of creeping or light judicialization as the SPC has taken creative initiative to guide the court system through judicial interpretation and has begun issuing ‘leading cases’ (anjian zhidao). That is why this analysis raises the question of where (or perhaps whether) the SPC should be placed on the continuum of judicialization and politicization that recognizes possible contemporaneous expression of what are severely imbalanced tendencies.
There are institutional, ideological, and political reasons for the primary trend towards heavy politicization. In the first place, the CCP created the court system. The SPC has to cope with the institutional reality that ‘judiciary and administration are inseparable’ (sifa yu xingzheng bufen) (Keith 1994: 82–83). The CCP has consistently disavowed American-style separation of powers (quanli fenli) , though Article 135 of the State Constitution obliges the SPC, the Supreme People’s Procuratorate (SPP), and the public security organs to work within an administrative separation of functions predicated on the mass-line organizational ‘principle of separation of responsibilities, mutual restriction and mutual coordination’ (fengong fuze, huxiang peihe, huxiang zhiyuede yuanze) (National People’s Congress of the People’s Republic of China 2000: 83).
Moreover, according to Article 3 of the 1980 State Constitution, all state organizations, including the SPP and the SPC, are subject to ‘democratic centralism’ (minzhu jizhong). Formally the SPC has the ability to ‘supervise’ and ‘guide’ the people’s court system, though no formal power to review national legislation; it also has informal capacity to improvise review through judicial interpretation of the law (see Backer 2009–10; Keith and Lin 2009; Peerenboom 2010). It does not consciously intervene in deadlocked politics but there have been cycles of self-conscious ‘judicial activism’.
The imbalance between heavy politicization and light judicialization is discussed here with reference to public positions taken by succeeding court presidents on the SPC’s relation to party politics and ideology that are contextualized within China’s ‘political-legal system’ (zhengfa xitong). The system, which the party’s Seventeenth National Congress reaffirmed as a key example of a system with ‘Chinese characteristics’,1 refers to the relative independence of courts, procuratorates, justice bureaus, and public security organs within the dual management and guidance of same-level and higher political-legal committees and of people’s governments.
Jean-Pierre Cabestan, director of the French Centre for Research on Contemporary China, has criticized the role played by the CCP’s political and legal affairs committees as an ‘obstacle to the emergence of independent courts’ (Cabestan 2005, 46). He notes that under China’s ‘authoritarian and repressive legal system’, rules outlined in the constitution have been ‘rendered meaningless as they are circumvented by more powerful political and Party norms’ (Cabestan 2005: 45). Gunter Schubert in his critique of Beijing scholar Pan Wei’s ‘consultative rule of law’ makes a similar point to the effect that legal reform of authoritarianism and upgrading of public administration will not sustain CCP rule in the long run (Schubert 2005: 7)
The former dean of the Peking Law School, Zhu Suli, has discussed what he calls ‘party-ization of the judiciary’ (sifa danghua), but he rebuts what he sees as Western distortion of the relation between law and politics in China. Objecting to ‘questionable presuppositions’ that (a) there is ‘a unique political influence that comes from the CCP’; (b) ‘that it is possible to create a standard model of a judiciary from political influence’; and (c) that it is possible and necessary for researchers to examine and measure such influence independently, Professor Zhu stated that while the Party’s influence is ‘ubiquitous’, so far as the judiciary is concerned it is ‘general and diffuse’ (Hou and Keith 2012). Zhu then took on his critics on the issue of party interference with the judiciary:
Today, although the CCP has adopted ‘relying on the law to rule the country’ (yifa zhiguo) and judicial independence is inscribed in the Constitution, party organizations and individuals persist in influencing and interfering with the judiciary. However, although these interferers are sometimes leading cadres who ‘wave the flag’ of the local Party organization, it does not mean that an individual’s interference represents the Party’s or that particular Party organization’s interference. To the contrary, some of them are violating CCP principles, policies, and disciplinary rules.
What follows situates China’s paramount court, the SPC, within the changing political-legal system before moving on to consider particular SPC judicial interpretations, leading cases, and statements of supervision that concern the protection of rights and interests and related operational problems of judicial transparency and enforcement. The analysis suggests that the SPC is a heavily politicized extension of China’s formal political-legal system predicated on general CCP leadership; however, the SPC has at times exercised its distinctive judicial and supervisory self-initiative in leading the court system to meet the needs of society. Distinctions between tendencies to judicialization and politicization are most evident with respect to recent cycles of SPC leadership, spanning the court presidencies of Xiao Yang, 1998–2008 and Wang Shengjun, 2008–the present.
The SPC approach to law and politics
The explanation for heavy politicization and light judicialization lies in the history of changes in Chinese institutions and politics. China’s political-legal system incorporates party and state organizations that coordinate to provide justice in society; over time the system has witnessed qualitative institutional change and perhaps unexpectedly different cycles of SPC ‘judicial activism’.
In Mao’s time the court system was a weapon that supported mass activism in defeating the class enemies of China’s new revolutionary regime. Legal institutions, including the SPC, had to comply strictly with party ideology: The law was subordinate to politics. Justice in the courts was not to stand in the way of the just cause of mass action.
Even when the judicial system was being built up in the early 1950s, SPC President Shen Junru, the only non-party member to serve as court president, warned judges to eschew ‘boundless magnamity’ (kuanda wubian) towards class enemies and counterrevolutionaries. He considered the people’s judicial organs to be part of the people’s dictatorship, which does not operate on the same basis as the capitalist concept of sifa duli (judicial independence). In the context of national political consolidation of the new regime, trials were to proceed on the basis of regulation as reflected in the ‘centre’s unified centralization’ (zhongyangde jizhongtongyi) (Shen Junru’s speech in Administrative Office of the Supreme People’s Court 2010: 21).
The 1954 constitution qualified Mao’s early 1950s mass populism with a new emphasis on justice institutionally delivered based on equality before the law (falu pingdeng). The SPC was given new standing as the highest court in the land, responsible for supervision of the national system of people’s courts; it was specified that the SPC and the SPP would ‘exercise their powers independently’.
Thereafter SPC operations closely followed the cycle of domestic politics. Rising class struggle in the mid 1960s worked against 1954-style institutionalization. This trend reached its zenith in 1975 with the drafting of a ‘leftist’ constitution that was to meet the requirements of the masses with the CCP as the ‘leading core of the Chinese people’ (Zhongguo renminde lingdao hexin). The 1954 Constitution was pared down from 106 to 30 articles to simplify judicial process and make it accessible to the masses (Zhang 2003). Article 25 of the 1975 Constitution dismissed the 1954 administrative checks and balances between organizations and gave Public Security the procuratorate’s responsibility for supervision. The SPC became just another court that ‘must follow the mass line’, especially with respect to the struggle against counterrevolutionaries.2
Reacting to the collapse of rights and the legal system in the 1966–76 Cultural Revolution, Deng Xiaoping came up with reasoning that approximated ‘government of law, not men’, criticizing ‘leftist’ misappropriation of the mass line for the sake of arbitrary political persecution. In December 1978 Deng supported a new strategy based on ‘entwined’ legalization and democratization: ‘Democracy has to be institutionalized and written into law, so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views’ (Keith 1994: 9).
Deng scrapped the more blatantly ‘leftist’ elements of the 1975 and 1978 constitutions, rejecting improper political interference in the legal system. ‘Judicial independence’ was addressed in Articles 5 and 126 of the 1982 Constitution. Article 5 proclaimed: ‘No organization or individual may enjoy the privilege of being above the Constitution and the law.’ Article 126 elaborated that ‘The people’s courts shall, in accordance with the law, exercise judicial power independently (duli xingshi shenpan quan) and are not subject to interference by administrative organs, public organizations, or individuals [italics added].’ The party may have had to adjust its viewpoint, but it still looked down from the heights on the constitution as a deus ex machina. The 1975 and 1978 constitutions had acknowledged the Party as the ‘leading core of the people’, and that formulation was carried forward implicitly in the 1982 constitutional reference in Article 3 to all state agencies subscribing to ‘democratic centralism’.
The relation between law and party leadership was addressed frankly: ‘Independence’ was not an absolute condition; it had become a conditional need to ensure respect for the authority of the law and the rational division of labor within the judicial system. In hindsight its leaders conceded that the party had been improperly intervening in the work of the courts, and that future counterrevolution (‘opposition to socialism’) was to be addressed through the court system. In 1980 Professor Dong Likun (Dong 1980: 14) explained the party’s new thinking:
The party’s most important task… is to guarantee the independent performance of the judicial organs…. Those who believe that only the party committee can judge cases and that they are party leaders only if the party interferes in judicial work just don’t understand this principle [of judicial independence]…. For a long time we ignored the specific function of the judicial organs and were unable to guarantee thorough implementation of the state laws. This fundamentally weakened party leaders.
The political-legal system underwent a major change with the inception of legal reform in December 1978 at the Third Plenary Session of the CCP Eleventh Central Committee Meeting. Some of the SPC’s basic terms of reference, especially its formats for interpretation and supervision, expanded to address the fastchanging needs to deepen economic reform and the related constant adjustment of ‘rights and interests’ to insure political stability.
A 1979 party circular had specifically forbidden party intervention in court sentencing (Keith and Lin 2006: 13). In June 1986 Deng (Selected Works , Vol. III) complained that the issue still had not been resolved. He criticized ‘substituting the Party for the law’ (yi dang dai fa), stating,
If the Party intervenes in everything, it will not help the people understand the importance of the rule of law. This is a question of the relations between the Party and the government, of the political structure of our country…. Right now the party is concentrating on rectifying the conduct of its own members, but at the same time we are trying to strengthen the rule of law in society at large. Our country has no tradition of observing or enforcing laws.
(Deng 1993: 166)
In Deng’s view, party members had to learn what not to do, and the masses needed to understand the implications and benefits of the ‘rule of law’. The subsequent 1986 CCP Central Committee Notice to the Entire Party to Stand Up for the Socialist Rule of Law presumed that the party would ‘act according to law’, because the law was of the party’s own making. It was assumed that the CCP must show the people the worth of the law by demonstrating that it would itself act according to law.
Peerenboom glossed the related ‘supremacy of law’ in China in the following way:
One of the main theoretical and practical issues in establishing rule of law has been how to reconcile the leading role of the Party with the basic rule of law principle of the supremacy of law. Theoretically, the issue has been resolved by allowing the CCP to set the general direction for society while requiring that the Party’s policies must be translated into law that is legally binding.
This interpretation was confirmed on 4 June 1987 by SPC President Zheng Tianxiang, who in referring to ‘grabbing construction in one hand, and the legal system in the other’ (yishou zhua jianshe, yishou zhua fazhi), explained the constitution’s notion of the supremacy of law:
The constitution and laws were approved by our country’s highest legislative authority under the active leadership of the Party Centre. The constitution and laws are the true expression of formalization in law of the Party’s mass line, strategies, and policies (Zheng’s speech in Administrative Office of the Supreme People’s Court 2010: 224)
As the Cultural Revolution receded in time, so did the old revolutionary generation. The CCP then turned its attention to the dangers of deepening corruption. In 1989 Jiang Zemin reiterated Deng’s 1986 instruction, claiming: ‘We will never allow the party to take the place of government, never allow the party to take the place of law’. In the 1990s, however, he argued that the law, in and of itself, would not solve the party’s number one problem, corruption, especially as it was spreading into the judiciary itself. The law does not apply itself; its application requires moral human agency. Jiang’s solution was to synthesize the rule of law (fazhi) and the rule of virtue (dezhi) (Keith and Lin 2006: 28). Reacting to the ‘absurd fallacies’ of the Falun Gong and Western country tactics of ‘peaceful evolution’ (heping yanbian), Jiang sought to reinforce the rule of law by linking it with Chinese morality—‘Chinese characteristics’ (Zhongguo tese).
In 1996 Jiang still championed the formulation ‘rule the country relying on law and establishing a socialist legal system countrywide’ (yi fa zhi guo, jianshe shehuizhuyi guojia), which was later highlighted in the constitutional amendment of 1999. Also, at the 15th Party Congress of 1997, after Deng’s death, Jiang reiterated his support for ‘systematic guarantees for the judicial organs to exercise independently and openly [this is the original Chinese translation of the English] adjudicatory power’. In 1999 Jiang (Keith and Lin 2006: 16) endorsed the ‘socialist rule of law’ amendment but he reinforced the relation of the rule of law to CCP-determined morality: ‘It is equally important to govern the country with high morals and persistently strengthen social moral construction. Ruling the country according to law and governing the country with high morals complement and promote each other (Keith and Lin, 2006: 16).’
Party leaders at the March 2001 session of the NPC agreed that the rule of law and the rule of virtue are coeval, especially given the mounting contradictions associated with the accelerated transition to the socialist market economy. Jiang resurrected traditional ‘good person politics’ (xianren zhengzhi) in a seemingly neotraditional pursuit of ‘harmony’. This irony was not lost on Chinese reform jurists concerned about the combined rules of law and virtue (fazhi yu dezhi) (Keith and Lin 2006: 17–18). Wen Xiaoli, for example, argued that separation of the law from morality, and in particular separation of the rule of law from the rule of virtue, was a necessary requirement of ‘modernity’. He warned that excessive emphasis on morality would foster a resurgence of the ‘rule of man’ as against the ‘rule of law’ (Keith and Lin 2006: 17).
Recent SPC court leadership
If there is one constant in the SPC’s mandate, it is supporting political stability by meeting the needs of the people; however, how the SPC relates to the people in accomplishing this task has been a matter of political discussion. In China people’s rights and interests (quanyi) are often equated with human rights (renquan); and protection of these rights and interests is justified as necessary to political stability and national economic development. With reform there was a new emphasis that protecting rights and interests made a contribution in responding to people’s needs in a time of profound transition.
Xiao Yang’s strong interest in legal reform was suggested when during the 1996 revisions to the Criminal Procedural Law and Criminal Law, as Minister of Justice, he welcomed procedural revision that helped protect human rights:
What needs to be specifically pointed out is that this amendment conforms to international practice and commonly observed judicial principles; and therefore proves beneficial to a strict enforcement of the law, to the protection of human rights, and to our efforts to reinforce our international cooperation and struggle in the fields of jurisprudence and human rights.
(Keith and Lin 2001, 185, fn. 27)
Minister Xiao also vigorously defended the principle of legality when he proclaimed: ‘… the principle of convicting a crime and meting out punishment according to the law has replaced reasoning by analogy’(Keith and Lin 2001, 211). He believed that this reform was every bit as important as the elimination of the presumption of guilt in the Criminal Procedural Law.
During Xiao’s subsequent tenure as SPC court president in 1998–2008 the SPC adopted judicial activism (sifa nongdong), supporting professionalization of the judiciary and an expanded role for judicial interpretation and supervision through a new system of ‘leading cases’. This reform stressed the importance of judicial judgment that respects ‘trial independence’. Xiao’s court aspired to meet the people’s needs with an arms-length emphasis on professionalism and due process (see Trevaskes 2011; Hou and Keith 2011; Liebman 2007). This was not just a technical matter as it touched on the essential relation of politics to law.
Deng’s legal reforms stressed the rule of law, trial independence, and professionalism as against inappropriate Party intervention and misappropriation of checks and balances within the justice system. In 2001 Court President Xiao cited the lessons of history: ‘When the law rises, a country is governed; when the law falls, a country is weak’ (Zuigao renmin fayuan liren yuazhang wenxian; 2010: 286). In the hindsight of 2004 failure to consolidate proposals for a new panel to oversee review of the constitution, Xiao’s words may have seemed prophetic.
However, though Xiao emphasized the rule of law, he did not hesitate to affirm its development with ‘Chinese characteristics’. In July 2002, he advised China’s judges: ‘You must proceed from reality, holding on firmly to China’s national conditions and exploring with great effort the road to the professionalization of judges based on Chinese characteristics; do not simply copy foreign models’ (Xiao Yang’s speech in Administrative Office of the Supreme People’s Court 2010: 293). In November 2002, he cited the party’s subscription to ‘liberating the mind’ and ‘seeking the truth from the facts’, but he also noted with approval the close relation between politics and law in China: ‘Judges in foreign countries on the whole do not do not participate in politics and their thought is comparatively conservative. China’s judges must go into politics and move with the times’ (Xiao Yang’s speech, Administrative Office of the Supreme People’s Court 2010, 308).
In his 2004 visit to Yale University, with the U.S. Chief Justice in attendance, Court President Xiao explained the difference between the Chinese and Western approach to justice in a way that was reminiscent of Jiang Zemin’s synthesis of the rule of law and rule of virtue:
From the perspective of setting the goals of the rule of law, the law’s basic essence lies both in judicial organs and in the judges’ thoughtful discretion, but the tradition in China is that of a ‘customary society’ and the law in and of itself cannot therefore serve as a so-called ‘miracle cure’ because basic elements, such as ethics and feelings, are part of the judicial process.
(Xiao Yang’s speech, Administrative Office of the Supreme People’s Court 2010, 313)
Since the 17th National Party Congress in October 2007, and especially since the appointment in March 2008 of Wang Shengjun as court president, there has been a palpable increase in the politicization of the SPC and the court system based on party leadership. In the last months of Xiao’s tenure, his boss, Luo Gan, chairman of the CCP Political and Legal Affairs Committee, picked up on Hu Jintao’s report to the 17th National Party Congress which called for strengthening of Party oversight of legal institutions and criticizing those advocating judicial independence and Western-style legal reforms. Luo was worried that ‘hostile forces’ were trying to use legal institutions as an entry point for Westernizing and splitting China (see Liebman 2007).
Wang has placed much more emphasis on ‘Chinese characteristics’, ‘mass line’, and the ‘Three Supremes’. Trevaskes has argued that Wang is engaged in a balancing act to facilitate ‘not justice practice but also the power relationships that undergird it’. She describes the party’s approach within China’s changing political-legal system as ‘legitimacy building’:
This legitimacy building does not entail separating party leadership and the policy-making process from the apparatuses of state power within the justice system; instead, quite the opposite. To improve the competence of judicial institutions so that they will gain citizens’ confidence, the party requires the public security organs (police), procuratorates (public prosecution), and courts to develop their institutional authority as a group as well as individually, all under the party’s overall leadership.
In one way or another the party has always formally referenced the importance of meeting the needs of the people, but the recent adaptation to China’s Confucian past has accentuated the relation between law, the politics of morality, and support for ‘harmony’ through ‘judicial activism’ that directly connects party and people. Under Wang the court has been more effusive than under Xiao in its wholesale subscription to the ‘Three Supremes’ (sange zhi shang). This secular trinity places the party cause and the needs of the people on the same level as the supremacy of law. Wang has reiterated the importance of responding to the leadership of the CCP, especially its Central Political-Legal Committee. His statements and SPC planning documents may make mention of judicial independence and professionalism, but the focus is on an institutional response that reflects ‘Chinese characteristics’ in court responses to people’s needs.
Court President Wang has directed provincial judges not only to understand the political impact of domestic conflicts but also ‘to balance the rights and interests of different groups in areas concerning labor disputes, surging housing prices and disputes about housing demolition’.3 Wang has also drawn on massline bias against too many court meetings and too many documents. His court reflects party frustration over delays in providing the masses with justice, but the immediate association with ‘feelings’ poses a dilemma for rule-of-law-making which requires ample time to work through impersonal and often unfamiliar due process. Wang’s ‘judicial activism’ prefers flexibility and using quick extra-legal solutions to release pent-up social frustration. He wants the court system to invigorate its Chinese roots and relearn elements of the mass line.
With regard to the now-famous 2010 case of the lawyer Li Zhuang in Chongqing, for example, there is concern that the courts, public security, and the procuratorate were working solely on the basis of mutual cooperation (huxiang peihe) and that formally checking each other’s functions (huxiang zhiyue) is undermined by practices that stress a direct mass-line relation with the people at the expense of professionalism. The close association of gongjianfa (public security, procuratorate, and courts) in Zhongqing raised the specter of a recidivist lapse into tiqian jieru , where the court ignores proper procedure and participates in the initial stages of investigation.
With Wang as SPC president the people’s courts are encouraged to support party leadership by supporting the needs of the people. Court personnel are to demonstrate correct work style by immediately interacting with the people and focusing politically on their interests. Some reformers would like to restrain the SPC, perhaps to minimize its politicization while highlighting the importance of professionalism and judicial independence to support rights and interests.
In the past China’s jurists raised concerns about extended judicial interpretation (kuoda jieshi) and the potential legislation-izing of judicial interpretation (guifanxing falu jieshide lifahua). Those similarly concerned today prefer that the SPC confine its activity to interpreting judicial matters rather than making policy. In recent years there has been a deliberate attempt to obviate National People’s Congress (NPC) controversy over issuance of SPC interpretations. Now there is preemptive deliberation of recommended interpretations by a special NPC panel. In this way the system anticipates contradictions within the politicallegal system and, presumably, fosters harmony rather than acrimonious disagreement between leadership institutions.
According to the constitution the SPC supervises the court system. This raises yet another set of questions. The SPC has been under fire for interfering with the ‘freedom of judges’ decisions’ even as it perhaps legitimately addresses often wildly inconsistent local applications of the standards of justice. One of China’s most senior jurists, Li Buyun, for example, has warned against ‘the proliferation of wrongly judged cases, the uneven, and indeed the irrational, application of the centre’s standards’ (Li 2004: 259).’ This is what Zhang described as the ‘judicial syndrome’ that is morbidly manifest in rampant ‘local protectionism’, low professional and ethical standards, and a highly centralized administrative model that is unable to fund local courts on its own terms (2003: 87). Human rights standards based on the rule of law require consistently supportive SPC decisions and interpretations, but the SPC is also part of the CCP strategy to ensure political and social stability through protection of rights and interests.
Reformers like Professors Chen Xingliang and Liu Yanhong have complained that the SPC is too concerned about general interpretations; it should stick to the specifics of individual cases. According to Chen (2003: 138) the tendency to general interpretation smothers the potential for ‘freedom of judge’s decision’ (fayuan ziyou cailiang). These critics have slotted SPC interpretations of the 1997 Criminal Law into three categories: supplementing the details of legislative intent; revising stipulated crime, moving beyond original legislative provisions; and making new stipulations to facilitate the fight against crime.
The SPC dilemma: procedure versus populism
The SPC has often risen to the defense of national standards, but in doing so it sometimes seems to take its cues from the party and public opinion. One of the most notorious examples was the Liu Yong case, which was determined during the tenure of Chief Justice Xiao Yang, who is widely considered one of the staunchest advocates of professionalism and independent trial.
At his first trial Liu, an infamous kingpin of organized crime, was sentenced to death. After this trial, disgruntled public security officers revealed that his confession had been illegally extracted under torture (Keith and Lin 2006: 145). Chinese jurist reformers have often argued that capital punishment cases require the highest standards of evidence. At Liu’s second trial, the High Court noted the illegal acquisition of evidence and reduced his death sentence to the lesser punishment of death with a two-year reprieve (which in practice almost always results in life imprisonment). The sentence reduction inflamed the public, who believed that clever procedure had thwarted justice and clamored for immediate execution. The sustained uproar resulted in a rare move by the SPC: It stepped in to revisit the revised death sentence by exercising its prerogative or ‘retrial’ (zaishen) a little–known ‘reconsideration’ procedure. Rather than returning the case to the trial court, the SPC in December 2003 changed the decision to a sentence of immediate execution.
Among some in the legal circles, there was disquiet that the SPC had never used its power of retrial before, and that, rather than returning the case to the court of second instance for reconsideration of its original verdict it directly overturned the latter’s verdict and made the decision itself without the usual outside request from the SPP. The SPC’s action did little to promote the cause for supremacy of law based upon principles of judicial justice and independence.
The larger issue regarding the SPC’s right to supervise lower courts was addressed only in 2010 in ‘Several SPC Notes Regarding Standard Relations Between Higher and Lower Courts in the Conduct of Trial Work Responsibilities’.4 Article 1 affirmed the right of the higher level to supervise and guide lower courts. Article 2 affirmed that each level is to carry out ‘trial work on the basis of judicial independence according to law’ (yifa duli xingshi shenpan quan). There is perhaps a hint of judicialization in Article 3, which strengthens higher court supervision and guidance by specifying categories of cases that basic and middle-level courts should forward to the SPC, including ‘important and complex’ cases, ‘new types’ of cases, and cases that have general legal relevance.
Protection of rights and interests
Reform has stressed the importance of adjusting and protecting ‘rights and interests’. The party mandated that the people’s court system led by the SPC should facilitate such protection to ensure political and social stability. The 1996–97 reform of criminal and criminal procedural law was inspired by the need to facilitate China’s new economy and protect the rights of designated newly emerging interests. Criminal procedural law was explicitly stated to be equal to the criminal law itself. Reform challenged the state’s past reliance on ‘flexibility’, substituted analogy for legislated law, and called for comprehensive stipulation of all manner of crimes.
The intention was easily forgotten in the extreme political pressure that accompanied the National People’s Congress Standing Committee (NPCSC) decision to eliminate Falun Gong activities. Acting together, the SPP and the SPC on 1 November 1999 issued an interpretation that grounded the reference in Article 300 to ‘evil cults’ in an urgently needed definition of related specific criminal behavior and established a new line of severe criminal punishments that could be used against adherents of Li Hongzhi (Keith and Lin 2003: 638).
Even with the disappearance of the criminal law on counterrevolution, there was thus a continuing CCP focus on using the law to ensure political action to support what the party decided would promote political stability. There was also new party interest in the use of law to protect new interests in society so as to support an orderly transition to the market economy that would avoid formation of festering social contradictions. Politically, the appeal to order in China cuts two ways. It may justify suppression, but it may also require protection of rights; and, as discussed below, it is in the latter sphere that there are inklings of judicialization.
protection of education rights
In other areas of judicial activity the party has also encouraged the SPC to protect the rights and interests of the masses in the interest of ensuring social and political stability. The case of Qi Yuling offers some insight on the court’s role in protecting rights: In an elaborate ruse by a corrupt official to secure college entrance under false pretenses for the daughter of an influential friend, a poor village girl was the victim of identity theft. Qi Yiling’s hukou , or registration, was used by this privileged student, who on this illicit basis went on to acquire a highly desirable job. Qi later discovered the theft of her identity and lodged a suit against the local official and the college educational authority for having infringed on her rights to a personal identity and to education.
As there was no specific law supporting the constitution’s guarantee of education rights, the Shandong Higher Court lodged a request with the SPC for instruction. The July 2001 SPC instruction favored Qi. The Shandong Higher Court’s subsequent ruling referred explicitly not only to Qi’s identity rights but also to the constitution’s guarantee of education rights.5 For a while China’s legal reformers euphorically compared this case in its significance to the U.S. case of Marbury v. Madison as it seemed to imply that the court was asserting its independence to review constitutional law and the rights it protected. However, the SPC later withdrew its interpretation in deference to a new national law on education.
Peerenboom offers a plausible explanation for the inherently conservative approach of the courts to using constitutional law: ‘Constitutional law developments… have the potential to alter the balance of power among state organs and challenge the basic principles of the political system’ (2009: 53).
There is more than one way to influence the course of justice, however. In its recent circulation of leading cases in administrative law the SPC drew attention to a 1999 High Court decision regarding a student who sued his university because on being caught cheating in an exam he was issued not a degree but a certificate. The case raised two important questions: First, could a student sue the university, which is part of the state administration? Second, did the student’s argument that the university had to give him a degree have merit? The High Court supported the lower court judgment that a student has a right to sue the university but also that in this case the university had acted properly in refusing the degree as punishment for cheating.6
The utility in describing this as a leading case is twofold. It protected the student’s right to sue, and courts throughout China acquired important, though nonbinding, advice that could reduce future laborious requests to the SPC for instruction as to the status of universities in administrative law. This was a rational and just streamlining of a system where there is no history of case law, and it supports SPC leadership in ensuring national standards of applied justice.
Rape and due process
Perhaps the most politically sensitive issues for the SPC arise from the criminal law. In 2003, for example, the SPC was caught up in a storm of public opinion about a sensational case in which several officials had raped an underage girl. Proceedings in the Liaoning High People’s Court had bogged down over an apparent gap in the criminal law. Both antagonists and protagonists were fascinated by the procedure and privilege issues. Criminal Law Article 236 makes it very clear that rape occurs where a man has intercourse with a woman under the age of 14 and is aware of the victim’s age. The defense argued that the alleged intercourse was with consent and that all six defendants were fooled by the girl’s relatively mature appearance and were unaware of her real age.
Since Article 236 did not state what to do in that situation, the High Court’s request for SPC instruction was reasonable. The SPC reaffirmed Article 236, Section 2, but went on to add that criminal rape had not occurred if the accused were unaware of the victim’s true age and the attendant circumstances were not ‘severe’. Though the reasoning focused on mens rea and the question of social harm, some reformers suspected that the SPC’s judgment was skewed to protect the officials.
Rights and interests are often examined through a time-sensitive prism of social stability. The Wang Shengjun presidency has carried over the work of the Xiao Yang presidency that established SPC panels to review all death penalties. The emphasis has been on strict application of the highest technical standards in the professional administration of justice. However, the SPC is well aware of party concern about mistreatment of the floating population and the relevance to social stability of protecting their rights. In 2010, for example, the court confirmed the death penalty for very grievous crimes of family rape and murder in Anhui and Henan involving the women and children of husbands who had gone to the city for work.7
Because these cases were extraordinarily severe the death penalty would probably have been upheld in any event, but the SPC used the cases to instruct lower courts that they should apply the death penalty with particular vigilance in such cases because they reflect a growing social problem that has catalyzed the spread of violent crime in rural areas. In this sense, the court was acting out of concern for social policy to support the rights of the floating population as well as for the sake of justice for the individuals concerned. Jurists have been debating whether policy considerations sometimes supplant the judicial dimensions of the trial process and whether this is not only a misappropriation of NPC legislative authority but also an inappropriate example of ‘administration-ization of court organization’ (fayuan tizhde xingzhenghua).
Judicialization and judicial independence
In his reflection on a popular account of the politics of the U.S. Supreme Court, SPC Judge He Fan has suggested that China’s SPC does not have the same luxury to focus on rights issues like abortion, racism, and states rights. China’s SPC, he argues, is in the ‘first stage of the rule of law’ (Toobin 2010: x). The SPC is immediately concerned with creating a viable institutional framework that will support ‘justice, efficiency and authority’.
In thinking about the progress of China’s legal system and the interpretation of ‘judicial independence’ and ‘judicialization’ in China, Peerenboom (2010: 4, 7) detects some weakness in Western generalizations, adding that ‘blanket denunciations of the lack of meaningful independence in China fail to recognize the more complex reality’. He sees ‘substantive disagreement in China about how independent the courts should be and whether the courts are the appropriate forum for resolving certain types of disputes, notwithstanding the global trend toward judicialization’ (2010: 4, 7, 9). Reflecting on He Xin’s work on ‘married-out women’ who after marriage leave their home villages and are then denied home village benefits, he notes that the courts have diverged from the global trend to judicialize such disputes, preferring to push them back to state agencies whose decisions are then subjected to court review under the administrative litigation law. Peerenboom is impressed with the savvy, the ‘strategic sophistication’, of the courts:
[By claiming the right to review the government’s decisions in administrative litigation] the courts retain an advantageous position in the power relationship with the government. Moreover, as the cases inevitably leave some groups dissatisfied, the court can avoid public displeasure by forcing the government to make the decision. [He Xin] concludes that the Chinese courts are capable of deliberating about transforming their situation by strategically interpreting the law and negotiating with superior powers.
Much of foregoing analysis suggests that under party leadership, the SPC and the court system it supervises are disinclined to challenge state organizations directly through a process of justiciability, but that the court system takes seriously the importance of political and social stability and has responded using indirect means, such as judicial interpretation and ex post facto review of administrative decisions.
The contemporary focus of party leadership on rebalancing makes it difficult to project a direct pattern of SPC judicialization; however, the system reflects self-correcting initiative even within the assumptions of the political-legal system. Wang Shengjun may have made less reference to professionalism than Xiao Yang, but he has nonetheless endorsed the current focus of reform on law enforcement and judicial transparency. A brief look at SPC-led reform in these two areas suggests, however, that there are serious barriers to the SPC effort to establish a ‘socialist rule of law’ in China.
If justice must be seen to be done, then transparency is necessary to instill confidence in the public and thus reinforce the legitimacy of government. In 1999 the SPC issued new regulations (guiding) on enforcement of open trial proceedings. These regulations confirmed that citizens could gain access to court hearings by producing identification. In 1999 and 2004 the SPC acted in support of standardizing judgments so that they will stand up to public scrutiny, issuing two judicial interpretations, ‘The Style Template of the Criminal Law Judgment of the Court’ and the ‘First-Instance Judgment of Administrative Law Courts’. Furthermore, regulations in the SPC’s Second Five-Year Reform Outline addressed the standard of judgment requiring that judges improve their professional skills, especially with regard to legal writing and reasoning and careful sifting of the evidence.
In 2007 the SPC issued an ‘opinion’ (yijian) on the matter of open trials . This SPC interpretation set out for the first time the principles that trials must be conducted according to law, without delay, and be open in all respects . Wang Shengjun’s court then reinforced the emphasis in 2009 with two more opinions and new regulations. The SPC committed to placing its judgments online and to broadcasting court trials live over the Internet.
Wang had no problem in picking up on Party Leader Hu Jintao’s new emphasis on ‘transparency’ even as he reaffirmed the close relationship between politics and law, commenting in the Guangming ribao : ‘Judicial power as an important ruling power is a significant way for the Party and the people under its leadership to administer state and social affairs’.9 The emphasis on openness was designed to generate trust in China’s legal system and thus enhance the legitimacy of the regime in meeting the people’s needs for fair and timely justice. Openness could also further the cause of education among legal circles and the general public. Indeed, openness could generally enhance law-consciousness— though it might also draw attention to the issue of judicial competence in a legal system struggling with corruption and extraordinary societal transitions and contradictions.
The SPC has acted to assert its capacity to supervise courts with one eye on opening up the trial process, thus ensuring greater trust despite growing corruption, and the other eye on raising the standards for judgment. Judicial transparency is expected to facilitate improved legal reasoning, although reporting on the latter is still truncated.
Wang has made it clear that he wants to clear the backlog of cases to meet the need of the masses for prompt justice. Justice must therefore not only be openly seen to be done, but it must also have expeditious policy results. Addressing provincial judges, Court President Wang announced that the SPC would in 2011 reduce its meetings and documents by one-third and, drawing on mass-line preferences for the simplicity and clarity of law, he targeted ‘pure formalism’ throughout the court system.10 Wang advised the courts to keep only records that might have a bearing on future cases.
The legitimacy of the legal system is tied to publicly perceived outcomes. There is growing public concern that justice is only for the wealthy and powerful despite any constitutional notions of ‘equality before the law’ and ‘independent exercise of judicial power’. What should the SPC do when the poor cannot defend themselves from the wealthy, and the wealthy indulge in wild, conspicuous consumption? When wealthy, privileged interests are brought to trial and are ordered to make restitution to those whose interests have been damaged, the integrity and dignity of the legal system are at stake. Failure to enforce compliance has exposed the justice system to popular disdain, particularly in cases where wealthy developers manipulated the ‘public interest’ by pushing longtime residents out of their homes to make way for what cartoonists have depicted as ‘the great mall’ of China.
The SPC’s 17 May 2010 remedial regulations, however, did not enforce restitution of lost benefits as originally ordered by the courts. Instead, they appear to be a public relations exercise designed to indirectly make the recalcitrant rich uncomfortable and thus appease public feelings. Article 5 confirms that courts can issue instructions to deprive the wealthy of the enjoyment of their wealth. In what appears to be a strategy of public shaming they can seek the cooperation of employers and also inform the media of bad behavior. The wealthy are to be made to compensate for the lack of harmony. They are denied air flights, the privilege of soft seats in railway cars, the purchase of luxury real estate, the rental of high-rise offices, the sending of their children to expensive private schools, etc.11
But does this kind of displaced enforcement link a particular punishment to a particular crime? Rather than focusing on restitution to those who have been harmed, it looks like an opportunistic political attempt to mollify outraged public opinion. Moreover, if it were truly carried out, it could create staggering operational costs, extraordinarily intrusive violations of privacy, and aggravated interventions in the social order. There is also the question of whether such a system can really assuage public feelings.
The court system is already in serious budgetary difficulty. A real solution to the budgetary dynamic that supports continuing local protectionism is elusive. The new regulations on ‘enforcement’ seem to be a kind of moral ministration— politicization with ‘Chinese characteristics’—rather than a rational, cost-efficient legal strategy.
Yu Lingyu, director general of the SPC Division for Law Enforcement, has defended the new regulations. He maintained that even though they would not result in restitution to those who had been harmed, they would serve as a wakeup call to the wealthy who think they are above the law and immune from court decisions.12 The legal system continues to address minfen , public feeling or outrage. Mass-line populism continues to challenge Western-based procedural reform. However, Renda Law Professor Tang Weichen is of the opinion that if the regulations were applied zealously they might jeopardize rather than reinforce social stability. He has argued that in effect pervasive surveillance could raise issues of the ‘Big Brother’ state and might lead to violence.
Conclusion: heavy politicization, light judicialization
Eric Ip has suggested that the SPC has already achieved considerable latitude through its interpretation process:
The SPC has self-consciously redefined its mandate to manage statesponsored legal reforms by performing an expansive range of new functions, such as issuing abstract rules, tightening control over lower courts, and crafting a constitutional jurisprudence of its own at the expense of other powerful state actors. It is asserting more than ever its own vision of how law should develop in the contemporary People’s Republic of China (PRC). SPC action can be broadly consistent with the Chinese Communist Party (CCP) interests, autonomous and expansive at the same time. However, the SPC’s reform initiatives are inevitably constrained by the vested interests of major bureaucratic players as well as the Party’s insistence on maintaining the Court as an integral administrative agency of its public security system.
‘Asserting more than ever its own vision of how law should develop’ may conflict with SPC participation in the public security system, but does it suggest more than light judicialization? This chapter’s analysis suggests that the ‘political-legal system’ has undergone substantive change and that the notion of ‘judicial activism’ has meant different things at different points in the cycles of SPC reform. Judicial interpretation is still important to the continued functioning of China’s huge legal system; however, SPC ability to issue interpretations depends on negotiation with the NPC panel, and institutional limitations prevent court comment on the validity of law. Moreover, in future, as the SPC’s system of leading cases evolves, there may be less institutional need for judicial interpretation.
For now, the comparative priority of judicial interpretation has to be seen in appropriate perspective. According to SPC regulations of 13 July 2009, if the legal system is taken as a whole, ‘judicial interpretation’ ranks behind law (falu), legislative interpretation (falu jieshi), provincial People’s Congress regulations (guiding), and autonomous regional regulations (guiding). There is otherwise no formal tolerance for judges making decisions about conflicts in the law.
The 13 July 2009 meeting of the SPC Judicial Committee moved to reinforce the law on legislation.13 Article 7 of the motion explicitly precluded People’s Courts from making judgments on the comparative validity of conflicting law. Perhaps in its distinctive deferral to principles of democratic centralism the SPC wanted to avoid a situation where People’s Court judges would attempt to determine the efficacy of law. If conflict between laws became evident in a court proceeding, the court was obliged to report it to higher ‘authorities’ without making its own determination. Essentially this avoided challenges to the decisions of People’s Congresses and preserved the superiority of the NPC’s exclusive legislative power. While sometimes interested in protecting rights and interests, the courts have not created a system of formal review of related law.
As Judge He Yan indicates in the preface to his translation of the recent analysis of the U.S. Supreme Court, because China’s SPC is in a formative stage of development, it does not have the same luxury as the U.S. court to deal directly with hot-button rights issues. It is not capable of shaping ‘pure politics’. It has not addressed ‘deadlocked politics’. However, does this mean that there is no judicialization at all? The SPC is still a dynamic agency that is becoming influential through improvised judicial activism. Judicial interpretation, requests for instruction, and the selection of leading cases are necessary to the delivery of what justice there is in China, and there is a new awareness of the importance of openly protecting rights and interests in society so as to ward off unrest and instability that could undercut CCP legitimacy and China’s continued economic success.
Emblazoned across the SPC’s masthead are the ‘Three Supremes’, but to some degree the SPC persists in its own Chinese understandings of professionalism and judicial independence as it tries to compensate for weaknesses in the nation’s court system in a time of profound transition in China’s society and economy when there is great need for institutions to cope with extreme stress.
The SPC is a political court. It has a political mandate established through CCP guidance and leadership. By Western liberal democratic standards this represents a massive politicization of the judiciary. However, the Chinese terms of reference are what Zhu Suli describes as ‘general and diffuse’. Unity is the message. Political instability is anathema but stability requires the protection of rights and interests within national economic development. These factors inform any concrete organizational tendency on the part of the SPC to carve out tentative areas of professional autonomy for itself as institutions around it modernize.
The SPC has declined to participate in open ‘judicialization’, though there is a modicum of opaque judicialization occurring insofar as the court creatively moves within the CCP mandate to create new formats of interpretation and supervision so as to provide more consistent and transparent justice in protecting rights and interests. The party has asked the SPC to meet the needs of the people, but how it does this is analytically interesting, reflecting as it does tendencies towards semi-independent institutional responsibility within a formally politicized system that must adapt to the requirements of party discourse and ideology.
1 ‘Zhongyong zhengfa wei tongzhi yaoqiu zhengfa xitong xuexi shiqi da jingshen’ (The Central Legal and Political Affairs Committee Passes a Motion to Study the PoliticalLegal Affairs System in the Spirit of the 17th National Party Congress, cpc.people.com.cn/GB/64093/64094/6467746.html , 31 October 2007 (accessed 9 February 2012).
2 The ‘mass line’ generally requires political leaders to listen to the masses and to create conditions supportive of the masses’ participation in political processes. In terms of the legal system over time this included the masses’ actual participation in judicial processes alongside judges as ‘people’s assessors’. Related recent reference to the mass line calls upon judges to listen to the masses and to get close to the feelings and needs of the masses. Such emphases may challenge formal legal emphases that stress judicial independence and the supremacy of the law.
3 China Daily , 21 December 2010, 4.
4 Guanyu guifan shangxia ji fayuan shenpan yewu guanxi de ruogan yijian (Several SPC Notes Regarding Standard Relations Between Higher and Lower Courts in the Conduct of Trial Work Responsibilities), available online at wsl2010.fyfz.cn/art/905747.htm (accessed 9 February 2012).
5 Hou Meng, ‘Suowei de “xianfa sifa hua diyian”—Qi Yuling an jieshao’ (The First Case of So-called Constitutionalism—Qi Yuling), available online at flhshkx.fyfz.cn/art/609287.htm (accessed 3 March 2011).
6 Chu Ming Su Tianjin Shifan Daxue bu luxing shouyu xueweizheng fading zhize an (The Case of Chu Ming v. Tianjin Normal University for Refusing its Legal Duty to Award a Bachelor Degree), available online at court.dl.gov.cn/info/136_49005.vm.
7 Bai Long, Zuigaofayuan hezhun sanqi qinhai nongmin liushou funu ertong sixing anjian (The SPC Approved Three Death Penalty Cases Relating to the Violation of the Rights of Stay-at-home Women and Children), available online at legal.people.com.cn/GB/13201328.html (accessed 3 March 2011).
8 The following argument on judicial transparency follows closely on the analysis in Shumei Hou and Ronald C. Keith, ‘A New Prospect for Judicial Transparency in China?’, China Information , 26 (1), March 2012, 61–86.
9 ‘Wang Shengjun zai quanguo zhengfa gongzuo dianshi dianhua huiyi shang qiangdiao: shizhong jianchi “sange zhishang” gongzuo zhidao sixiang nuli shixian renmin fayuan gongzuo xin fazhan’ (Wang Shengjun stressed in a national television and radio conference on political and legal affairs the consistency of the Three Supremes as our guiding work principle in achieving the new development of the people’s courts), Guangming ribao , 19 December 2009, 2.
10 ‘Fewer Meetings and Fewer Documents’, China Daily , 21 December 2010, 4. Mao Zedong used to complain of ‘three too-manys’: ‘too many officials, too many meetings and too many documents’.
11 SPC document no. 8 (2010), 17 May 2010, Zuigaofayuan guanyu xianzhi bei zhixingren gaoxiaofei de ruogan guiding (SPC Regulations on Restricting High Consumer Lifestyle).
12 Chen Fei, ‘Zuigaofayuan ni chutai xianzhi gaoxiaofeiling yingdui zhixingnan’ (The SPC will issue a regulation to restrict the high consumer lifestyle), available online at www.gsly6.com/ShowArticle.shtml?ID=200991810492357739.htm (accessed 4 March 2011).
13 SPC document no. 14 (2009), Zuigarenminfayuan guanyu caipan wenshu yinyong falu, fagui deng guifanwenjian de guiding (SPC Regulations on Applying the Law, Regulations and Other Legal Documents in Judgments).