Meridian Beat: Judicial Reform in China

Interviewed by: Zhaoxin Jiang                     Posted on: February 11, 2014

Xu Xin is a professor of law and director of the Research Center of the judicial system at the Beijing Institute of Technology. Professor Xu is one of the most influential law scholars actively engaged in judicial reforms in China.  His areas of specialization are law and society, judicial system, and procedural law.

Meridian 180: Professor Xu, we really appreciate this opportunity to hear your thoughts about China’s judicial reforms. To begin with, would you please let the “Meridian 180” community briefly know about your own studies?

Professor Xu: Judicial reforms have been my area of research for years. Five years ago, I initiated the project on China's Judicial Reform Annual Report, which has been published at the beginning of each year. The reports have produced certain effects both inside and outside of China. In addition to the overall assessment of annual judicial reform performances, we also use the report each year to feature a fundamental issue of these reforms: for example, in 2009, we brought up the “two waves and three elements” (“两波三元素”) idea regarding the judicial reform phases; in 2010, we called for the de-politicization of judicial reforms; in 2011, we discussed the role of public participation in judicial reforms; in 2012, we reemphasized the judicial independence issue; and in 2013, we worked out our proposal for top-level design of judicial reforms. All in all, we are trying our best to provide some useful operational plans for China’s judicial reforms and for building the rule of law. Other related work I have done include the annual production of multiple research reports on judicial reforms, collaborations with judicial institutions in launching judicial reform programs through judicial reform experiments at different localities and on the website in promotion of auditing of trials and bare-foot lawyering, and so forth.

Meridian 180:In 2013, the Third Plenary Session of the 18th Central Committee of the Communist Party of China (“the Third Plenary”) announced The Decision on Major Issues Concerning Comprehensively Deepening Reforms (“the Decision”). In the newly drafted annual judicial reform report, you write that the Decision has expanded beyond the earlier focus of the Plenaries’ decision on economic reforms towards a more comprehensive plan for the next ten years in order to deepen current reforms. In the Decision, the rule of law has been strongly emphasized. This signals that the Decision prioritizes rule of law reform as the strategy for China’s development. In your view, what does this mean for judicial reforms?

Professor Xu:The year of 2013 has defined the direction of China’s judicial reforms for the coming ten years. For the people in China, the greatest significance of the Third Plenary is that it enables them to look afresh at the importance of judicial reforms. Although the Decision does not directly mention judicial independence, it helps shore up judicial independence by emphasizing rule of law building. This opens up opportunities for the next round of substantive judicial reforms like judicial de-localization and de-bureaucratization. However, securing judicial independence remains the unavoidable breakthrough point and sooner or later China has to touch on this key issue.

Meridian 180:What are your general observations about the recent judicial reforms in China?

Professor Xu: From the opening of the Third Plenary Session of the 11th Central Committee (1978) up to now, two themes remain unchanged for China: one is economic development, and the other is building the rule of law. Judicial reform is crucial for the latter goal. After the Socialist System of Laws with Chinese Characteristics was largely completed, the focus shifted to judicial reforms.

In the late 1980s, China launched civil procedure reforms, then in 2008, issued the Opinions on Issues of Deepening Reform of the Judicial System and Its Work Mechanisms, and in 2013, the Third Plenary proposed “efforts to deepen the reform of the justice system, to uphold the Constitution and laws, to ensure independence and fairness in courts, and to boost the judicial system to protect human rights.” China’s judicial reforms have made considerable achievements and brought out positive results. One achievement is that lawyers’ knowledge and philosophies have changed. Most lawyers have the modern notion of judicial system that fits for the judicial development. In addition, the current economic and social structure and people’s ideas have changed significantly. Therefore, . no person or organization can pull China back to the rule of man, nor can they pull the country back to those lawless and unruly days.

China’s rule of law building has successfully gone through the crucial stage of deciding which direction to take. It won’t greatly change the overall trend toward the rule of law and constitutionalism. At this moment, social conflicts are intensifying. People’s demand for justice is increasing each day. That “let justice be felt in every single case“ has become people’s primary demand. However, lacking justice, public confidence, authority, and limited achievements in judicial reforms over years, in addition to unhappiness with the judicial system and its related reforms, cast doubt on any optimism about judicial reforms.

Meridian 180:Recently, you have been actively engaged in proposing the top-level design of China’s judicial reforms. Would you please share with us your reasons for the judicial top-level design?

Professor Xu:Top-level design serves to ensure judicial reforms with the right direction, overall planning and management. China’s two decade experience of judicial reform has clearly vindicated this point: judicial reforms without top-level design will normalize or even worsen the malfunctioned judicial system, and ultimately render the judicial reforms null and void”. For example, de-bureaucratization was supposed to be the main purpose of reform. However, those reforming measures adopted in recent years, like the judicialization of the case referral system or the establishment of the judicial patrolling system, have not weakened but rather enhanced the bureaucratization of the courts’ internal vertical relations. Lacking the overall planning and management from the top-level, judicial reforms will likely fall into the “treat the head when the head aches, treat the foot when the foot hurts”(头痛医头、脚痛医脚)dilemma ---- with measures full of glitches and contradictions. Those conflicts emerging from the judicial reform process include conflicts between interdepartmental reform measures, and the central and local governments. The disconnect arising from the reform process is largely represented in the incongruity between actions taken by the central and local government: on the one side, measures adopted by the central government have hardly taken local considerations into account, and have therefore received no effective responses and implementation from local representatives; on the other side, creative local reforms have hardly attracted any attention from above, not to mention their possible good demonstration effects for other localities.

For years, judicial reforms have been trivial and fragmented — a matter of technique. Many believe that this approach for reform can’t produce significant results at all. Being “in dribs and drabs” (小打小闹) is indeed the reforms’ obvious issue. That said, in spite of its limited role ----the judicial technique reform pe se still needs to be improved significantly, it can accumulate energy for any future substantial changes in the judicial reforms. However, judicial reform should absolutely not confine itself to the level of trivial and fragmented reform, but instead to the overall planning with a clear settled direction so that we can boldly, resolutely, and steadily march on. The top-level design of judicial reforms can be regarded as a beacon for current malfunctioned reforms. It redefines the direction, helps guide the reforms out of the dilemma, and thus is of vital importance for a brighter future.

Meridian 180: Could you please clarify for us what top level design of judicial reform is about?

Professor Xu: In October, 2010, the term “top level design of reform” was first adopted by the fifth Plenary Session of the 17th Central Committee. This term originally referred to large project planning, but later on to broader strategies for development in much wider fields. The term can be simply broken down as “top-level” and “comprehensive” reform. :“Top level” in its commitment to a main purpose, to aiming high, and to managing from the top down and “comprehensive” in its commitment to overall planning, to a holistic view, to systematic structuring, and to comprehensive design. The “top level design” idea fits with the current domestic situation and meets the demands of current reforms. However, for a relatively long time period of time due to the trivialness, shallowness, short-sightedness and contradictions of earlier so called “reforms’” immense questions and doubts have been raised and the reputation of reform has been jeopardized. Therefore, without carefully contemplating overall top level design, any substantive reform will suffer myriad impediments, and will hardly show progress.

Regarding top level design, a reform should first and foremost define a direction, determine an optimal approach, and discover breakthroughs. Constitutionalism, democracy and the rule of law are inevitable for China’s future development. Regarding the reform approach, previously, it often followed from the peripheries to the center, the local to the national, and the grassroot levels to the elite levels; from now on, the reform approach should emphasize the other way around: from the top to the bottom, the state to society, the center to the periphery.

Meridian 180:In a nutshell, what would a top-level design look like?

Professor Xu:The concrete design I have structured for the judicial reforms can be generalized into “five pairs of relations(五对关系)”and “six safeguards (六个保障)”. The former secures the infrastructure, and the latter serves as the critical building blocks for the reforms. The two are inseparably connected.

Meridian 180:Could you please explain the “five pairs of relations” you just mentioned?

Professor Xu: Regarding the first pair of relations, I would emphasize a strategic design of the judicial reforms. The main goal of a strategic design is to maintain better alignment between judicial reforms and political reforms, and with social stability. I believe judicial reforms as a whole should be prioritized as a critical point for political reform.

Second, I would say judicial independence aims to grapple with relations between the country’s judiciary and politics, especially party politics. Regarding its relation to the judiciary, the best that the Chinese Communist Party can do is play a leading role in political and organizational spheres. The principle that the party should not interfere in the judicial system should not be violated.

Third, I propose judicial review, which will be designed to correctly strike a balance between the judicial, legislative and executive branches, and also to assure the constitutionality of legislative actions and the legality of executive actions. Please note that to institute judicial review in China means courts will have broad reviewing power against- administrative acts and that courts don’t need to report to the people’s congress.

Fourth, I would suggest the optimization of the allocation of judicial power. This will be designed to properly administer judicial institutions’ internal or external relations. Within the courts, I propose reforming or relinquishing the following: the number-based (judicial performance) review mechanism, judicial qingshi practices (internal advisory opinions), and the final decision making power that the presidents of law courts, the presiding judges, and the adjudication committees have exclusively possessed. Judges’ independent adjudication in concrete cases needs to be fully safeguarded.

Fifth, I propose that the design of judicial finality will be able to properly deal with the relations between the judicial and other dispute resolution mechanisms.

Meridian 180:What are the concrete measures you would propose for the “six safeguards” ?

Professor Xu:The judicial infrastructure that the design of the abovementioned five relations would create will need concrete institutional safeguards. Generally speaking, there are six categories for these safeguards.

  • The first is the judicial career safeguard. This category of safeguard is essential for the judiciaries to correctly, efficiently, and independently discharge their adjudicative and prosecutorial duties. Judges and prosecutors should enjoy identity protection, personal safety measures, and immunity rights for their professional obligations.
  • The second is the budget safeguard, the material precondition for the judicial system. Whether the judicial power can be independently and fairly implemented is hinged on its ability to function beyond local budget control. Therefore, I propose a transitional method: first, the exclusive management of the budget at the provincial level, but with ultimate authority belonging to the central government.
  • The third is the fairness safeguard. To pursue this safeguard category, we have to ensure judicial independence, enhance judicial supervision, accountability and efficiency. To this end, we have to fully promote judicial transparency, reform judicial procedures, insist on independent adjudication, and make institutional changes to prevent wrongly decided cases.
  • The fourth is the secured efficiency safeguard which is aimed at solving the judicial resources’ distribution issue. Saving and efficiently utilizing judicial resources is the mainstay of this design.
  • The fifth safeguard is democracy. I believe, the most important means by which to achieve judicial democracy is through a jury system.
  • Finally, the last is to safeguard the interests of the weak in society. In other words, it is to ensure fair access to justice.

Meridian 180: At this moment, your proposal of a top level design of the judicial reforms seems to be an ambitious political and social project. How would you realistically fulfill this top level agenda for these judicial reforms?

Professor Xu: In order to implement the top level design, I propose a two-step strategy. The “five relations” and “six safeguards” are long term ideals from which we can tease out some realistic and accomplishable goals for the near future. Therefore, I suggest the following approaches:

  • First, we may dissect the design into separate tiers or layers, and begin with the easiest, followed by the more difficult ones. Precisely what difficulties have impeded judicial reforms, in particular, and national reforms, more generally? This question demands concrete analysis. It is wrong to give up unequivocally before any challenge. The majority of challenges confronted by judicial reforms are largely caused by special interest groups. Therefore, it is not impossible--even some challenges are nothing but ungrounded assumptions.
  • Second, I propose to depoliticize the judicial system. There is so much potential for us to improve judicial reforms through the legal technique approach---- that is, to utilize the de-politicization technique and strategy to untangle the judicial system from politics. Except for the socialist and the Chinese Communist Party leadership, theoretically speaking, almost all issues could be considered and better resolved as problems of technique.
  • Another approach might be to apply reforms through the court system. The courts and judges alike frequently complain of too much interference. However, most interference comes from inside the system---- from the presidents or the presiding judges of the courts. The local party or governments’ interference in the judicial system is thus mediated through the courts presidents or presiding judges. Therefore, judicial reform begins with independence from within the court system so as to realistically dissolve the judicial bureaucratization issue and enhance the courts general level of independence ---- e.g., the courts above do not interfere with the courts below, high administrative officials in the courts do not interfere with concrete cases, etc.
  • The fourth approach I suggest is to accumulate momentum. The progress of judicial reforms demands incentives and momentum. Only when people from above have the determination for reform, can people from below have the confidence in reform. Unfortunately, for quite a long while, both were missing. For this reason, I propose to start judicial reforms in order to expand transparency, invite the public to participate in the reforms, and encourage society to engage in judicial reform studies. In the people’s congress, I propose setting up a judicial reform committee, and include laymen in the design process.
  • The final approach I recommend is a basic and long-term strategy towards the improvement of general conditions for the legal community. The best institutional design cannot run well without a well-developed legal community. Naturally, while judicial reform is in progress, we must put emphasis on the improvement of the overall quality of the legal community ---- the two are interconnected. To improve the legal community, I propose to focus on the improvement of the current selection system for judges. In the meantime, legal education also needs significant reform. It needs to shift its emphasis towards legal professional education and legal ethics education.

(Translated by Jiang Zhaoxin, edited by Eudes Lopes)