He believes that bolstering the court system is a key to easing social tension and stabilizing society. He calls for the Communist Party to take over the courts directly, “(In each locality), one of the primary party leaders should also directly become the president of the court. (Doing that) can improve problem solving efficiency and reduce government costs.”
Although the Party has de facto control over the courts, China’s courts are mostly run by relatively junior level cadres whose authority is often challenged or ignored. The author’s proposal could enhance the court system, but it might not help the Party’s preferred image. He discusses another Catch-22 situation in China.
The following is translated from excerpts of the article.] [1]
The reality of our country is that society is full of conflicts and problems; safety issues in all aspects have become more and more worrisome. Safety is not only important to people’s daily lives, but it is also the foundation of social stability and development. If people do not feel safe or do not have confidence in the future, they will not make the best effort to do business and invest in future production; they would rather indulge in lavish lifestyles or transfer their money abroad. … We stress the need to establish the authority of the law, but the law by itself does not produce authority, the authority of the law comes from the judicial system. Without the authority of justice, the law has no power. Many countries, including some highly developed countries, are universally recognized as countries ruled by law. Though they do not have a large body of statutes, they have an authoritative and sound judicial system.
From the current reality of our courts and judicial system, the key issue is that our judicial system lacks authority, and therefore credibility as well. On one hand, the numbers of law suits has increased rapidly; on the other hand, people do not fully trust our judicial system. In the minds of many, the court cannot be completely fair in trial cases. First, there are higher officials above the courts; there are other authorities controlling the courts, and the courts and other government agencies are all “government officials.” They will cover for each other. As a result, many cases cannot conclude even after the trial; some plaintiffs have had to appeal (due to an unfair court decision) for years; and some court adjudications have been ignored. The high profile prolonged appeals and difficult implementations of court decisions have become major social problems. Second, it is difficult for citizens to sue government officials and agencies. The trial court’s administration in this aspect has been stagnant for many years. There are rarely any cases adjudicated. Among those adjudicated, in very few cases did the government officials and agencies lose. The real reason for this phenomenon is not that the government branches are not at fault, but that the courts are more reluctant to accept such cases. The courts try to divert such cases as much as possible. Even if they have to accept them, they try very hard not to go through trials. They prefer an out-of-court settlement through negotiation.
Therefore, it is an urgent priority to restore people’s trust in the judicial system, and establish the authority of the judiciary.
“Building a socialist country ruled by the law” is not only a great political guideline for the Chinese Communist Party, but also the grand goal for China’s economic and social progress. Building a democratic, civilized, harmonious and prosperous socialist China needs the “ground rules of the law.” Ground rules of the law means that systems of democratic legislative, impartial justice, fair market resource allocation, and effective supervision are established.
No matter what forms exist in a society, there is always a supreme authority. If, in the public’s mind, the supreme authority is not the law, then society is certainly not ruled by the law. No organizations or individuals, including the ruling party and its leaders, can be above the law. This is the premise of building a socialist country ruled by the law.
Establishing the authority for our judicial system is essential for the Party’s cause, for our nation and people’s interests. The Party’s ruling status is determined by the Constitution. Even after the Party’s guidelines, strategy and policies are written in the law, it is still difficult to maintain its effectiveness and ensure its implementation without judicial authority,
We need to clearly define justice, and treat the courts as a separate judiciary. We have been performing judicial reform for many years, but what is justice, and who is the judiciary? It seems we still have not resolved such a simple basic issue. In the past we did not mention justice. We talked about political-justice, public security, and law enforcement authorities. We blended the police, the procurator house, the court, the justice department and national security together as one system. … But in China today, the number of annual court trials exceeds 10 million cases, and more than 90% of them belong to civil and business cases, administrative cases, and private prosecution of criminal cases. These cases are directly accepted and adjudged by the courts. Criminal cases that need coordination with the police and procurator departments are less than 10% of the total cases in China, and about 5% in Shandong Province.
From the current situation, we can see the quality of our courts in handling cases is very high. The quality of the legal procedures in handling cases can almost reach or exceed the quality of pure gold. People trust the courts because they feel the courts are more reasonable, more law based, and fairer than any other government agencies. If the courts’ adjudications do not count, how can people still trust the courts? It is the courts’ duty to resolve social conflicts. If we lose people’s trust and the judicial authority, the courts will not only be unable to resolve social conflicts and disputes, but will rather intensify clashes in society, and cause headaches for our Party.
The Party must keep a tight grip on judicial power. In order to establish the judicial authority and improve the status of the judiciary, the most important tool is to strengthen the Party’s leadership of the judiciary. … Currently many secretaries and deputy secretaries of Party committees at various levels also have government jobs, such as chairmen of the People’s Congress, heads of the local government, and chairmen of the Disciplinary Commission. The Party’s Standing Committee members also hold positions, such as head of the Organization Department, chief of the Propaganda Department and even police chief. But they rarely hold the positions of Court presidents.
Influenced by the Western theory of the rule of law, a number of our Party and government leaders do not dare courageously and confidently to lead the judicial process. They are afraid of being blamed for influencing judicial neutrality and impartiality. They seem to believe that the court and the Party should maintain a distance and that this is best for the image of our justice system. This is a misunderstanding. All political parties in the world are established to control and influence state power. It is a heavenly mandate for the ruling Party to hold on to state power. The ruling Party must have tight control of all important state authorities. Otherwise how could the ruling Party govern! …
Our Party represents the fundamental interests of the vast majority of the Chinese population, and it does not have any special interests of its own. The Party’s direct control of the jurisdiction will not affect judicial impartiality. We should proudly take over the judicial power; there is nothing to be ashamed of. Through judicial reform, we should further strengthen and improve the Party’s leadership in the judiciary, to make sure the Party has firm control over judicial power. This way we can fully utilize the judicial power to implement the Party’s guidelines, principles and policies, let the judiciary serve for realizing the Party’s governing objective and achieving the Party’s goals, and serve for the consolidation of the Party’s leadership.
The most direct and effective way to strengthen the Party’s leadership over the judiciary and control judicial power is to train talented Party members as judges. One of the primary Party leaders (in each locality) should also directly become the president of the court.
Our Party’s authority is paramount. When a main Party leader becomes the court president, the court authority is naturally established. It is self-evident that with judicial authority, the authority of the law can be established. … (Doing this) can improve problem solving efficiency and reduce government costs. On the other hand, from the perspective of the court, if a main Party leader becomes the court president, many drawn-out tough cases can be resolved quickly. It will provide a huge boost to China’s development of the court system.
Endnotes:
[1] Zhou Yuhua, Study Times, July 12, 2010
http://www.studytimes.com.cn:9999/epaper/xxsb/html/2010/07/12/11/11_28.htm