Editor’s note: Following up on the speech Zhou Qiang delivered to the National Conference of Court Presidents on January 14, today the People’s Court Daily published an article titled “Taking a clear-cut stance on protecting and realizing the constitutional principle of independent adjudication“. The editorial – signed under the pen name of Fa Yanping (法言平) – further elaborates on some of the points raised by Zhou Qiang (available here). As observed by Professor Donald Clarke, prominent public intellectuals as Jiang Ping and He Weifang in the past had already expressed their own point of view on what organizing principles a political system could adopt. The full translation of the People’s Court Daily editorial is presented below, “as it is”. Your comments and corrections are most welcome. Thanks to Jean Christopher Mittelstaedt for pointing me to this article.
One of the biggest contributions of our Constitution to the judicial system, is adherence to the rule of law principle of independent adjudication according to the law from start to finish. Thirty years ago, the Report of the 13th Congress for the first time since Reform and Opening Up launched an appeal to “guaranteeing judicial organs’ independent exercize of the power of adjudication”. From then on, in the report of each Party Congress there has been no lack of mention of independent adjudication according to the law. Even more, the 3rd and the 4th Plenary Sessions of the 18th Party Congress have considered judicial reform as the focus of comprehensively deepening reform, and comprehensively advancing the rule of law, so that the vitality of the principle of independent adjudication was put into effect and developed following each reform measure. And reforms are directed at those words and deeds which violate the constitutional principle of independent adjudication.
Through reform, those words and deeds which violate the principle of independent adjudication will be swept into the trash heap of history, and Western constitutional democracy and judicial independence which are extraneous to China’s national circumstances will not find any fertile soil. Our Constitution has established the principle of Party leadership, the people’s democratic dictatorship as our State system, and the people’s Congress system and the principles of socialist rule of law as the “shape” and the “portrait” of the principle of independent adjudication according to the law. Western countries have “judicial independence” as it suits the model of their political systems, social systems, ideology, history and culture. China also has its own model of “independent adjudication according to the law”, built upon the basis of its political system with Socialist characteristics, social system and ideology, core values, history and culture on the basis of “independent adjudication according to law”. China respects other countries’ choice of political system and judicial system in accordance with their own reality, and China certainly has the right to establish a Socialist judicial system with Chinese characteristics in line with China’s national conditions which also respects its judicial regulations, and to adopt the people’s masses feeling of judicial fairness in every case as a test. China’s economic and social development model has received widespread attention around the world, and China’s judicial system will (in some aspects it already has) contribute its own experience to the judicial culture of mankind.
General Secretary Xi Jinping last year pointed out how the first three years of comprehensively deepening reform would lay the base, and set the columns and beams. The areas of reform where “the columns and beams have been set” and “can play a support role” must be gradually expanded by proceeding cautiously. From January 2014 until today, the Central Leading Group on Deepening Reform has convened 31 meetings at which 23 topics related to judicial reform were discussed, and it has adopted 38 documents on judicial reform.These reform measures have created the beams and pillars of our country’s judicial system, and most of them are directly or indirectly related to strengthening the independence of the judiciary.
Concerning the management system, based on the correct judgment that judicial power basically belongs to the responsibility of the Center, the Center has pushed for the unified management of courts’ personnel, funds, and assets by provincial organs, highlighting how local courts “are not local courts, but courts that the state has established in local areas to represent the state’s judicial power”. At the same time, the Center has established cross-district courts, exploring a system to divide the jurisdiction in ways suitable with administrative divisions, and thus it has pushed for external independence, and reduced external interference.
Concerning the judge system, based on the idea that judges are different from ordinary civil servants, a special committee for the selection of judges and a judges’ disciplinary commission have been established, the management of court personnel according to their category and a judges’ quota system have been implemented, enhancing judges’ level of professionalism, promoting a professionalized management model, and thus realizing the professional independence of judges.
Concerning litigation procedure, based on the doctrines of the centeredness of trial and of court hearings, the decisive role of the judiciary in making fair judgments has been developed, particularly as it relates to the role of court hearings in the finding of facts, the determination of evidence, and the protection of litigation rights. [This has] induced case-handling personnel to accept the idea that a case must go through a legal test in order to be opened or to be adjudicated, and that substantive fairness in case adjudication is achieved through procedural fairness of court hearings. Thus, adjudication has become more independent, and the judiciary has enjoyed a greater authoritativeness.
Concerning operational mechanisms, the “administrativization” trend of judicial proceedings, the performance of major operations to overcome “those who hold the trial do not adjudicate the case, those who adjudicate the case do not hold the trial, and their responsibilities are unclear” as well as other prominent problems, are being solved by abolishing the case approval system, the system whereby leaders must sign judicial verdicts, and by reforming the adjudication management and supervision systems, to allow judges and judicial panels to truly become the subjects who adjudicate a case, and to realize “those who hold the trial adjudicate, and those who adjudicate are responsible”.
Concerning the elimination of interferences, efforts have been made to correctly handle the relation between Party leadership and ensuring an independent exercize of judicial power independently, by requiring leading cadres of Party and Government organs at all levels to support independent adjudication, and by establishing system to record, report and prosecute those leading cadres and judicial personnel who interfere or get involved with the judiciary or intervene in cases. At the same time, the right of the judiciary to staunchly refuse to accept the unlawful interference of Party organizations and leading cadres in adjudication has been guaranteed.
More than three years of reform prove that the above mentioned “main frame” and “project” respect the regulatory [mechanism] of the judiciary, and that they are also in line with China’s national conditions, therefore, this kind of highly effective reform very much depends on the political superiority of the leadership of the Communist Party of China. General Secretary Xi Jinping pointed out how Party leadership must be upheld, and one must “persist in combining being in line with national conditions with following the regulatory mechanisms of the judiciary, and unswervingly deepen judicial system reform.” This is the most forceful counterstrike to the Western erroneous ideologies of “constitutional democracy”, “separation of powers” and “judicial independence”. As we all know, the major national conditions of China is the leadership of the Communist Party of China, therefore China will for a long time remain in the primary stage of Socialism. Even though there some aspects in our country’s judicial reform still do not meet the expectation of the people, the reasons for these are extremely complex, and while some causes are systemic and institutional, others are related to the limitation of our developmental stage.In only a few decades, China had to cover the developmental road that Western countries walked in a hundred or even a few hundred years, having to solve political, economic, social, cultural, environmental problems, as well as the variety of problems encountered in constructing the rule of law in China. Encountering some difficulties was inevitable.But, deviating from historical materialism, and only relying on subjective categories and concepts, such as concepts with their background in Western states, to measure social existence, its development and changes, would not bring China on the road to success.
We have always had a clear-cut stance in favor of maintaining and implementing the constitutional principle of independent adjudication, and we have explained China’s position to the world also through the accession to international legal documents.What we must truly show the sword to are those delusions of forcing upon China the erroneous Zeitgeist of a “judicial independence” rooted in Western political, economic, social systems and ideologies. Understanding the theory of Socialist rule of law and judicial regulation is a process of gradual clarification and gradual deepening. But, if there are persons with ulterior motives who attempt to guide judicial reform in China through erroneous ideologies, then this can only lead reform to a dead end. This is something every responsible legal person would not consent to, and it is something every Chinese person who desires to achieve judicial fairness would not consent to.