Aiming High

When criminal lawyer Gao Zicheng， along with a panel of 20 other legal experts and lawyers， was invited by the Supreme People’s Court to attend a consultative seminar in April on “how to rescue the credibility of the judiciary，” he could hardly believe it.

“It was completely unexpected，” said Gao. Only three years previously， Gao’s colleague Li Zhuang was convicted of perjury for defending a businessman in a politicized trial in the southwestern city of Chongqing. China’s law enforcement authorities and the country’s judges have typically treated any criminal lawyer willing to defend a client with considerable hostility.

But things have seemingly changed with the arrival of China’s next generation of leaders. On three separate occasions in 2013， Chinese President Xi Jinping pledged that his administration would ensure that the public would “experience justice in every case，” and also vowed to respect China’s constitution.

In March， the central leadership appointed Zhou Qiang as the new director for the Supreme People’s Court. Compared to his predecessor Wang Shengjun， a former police official and Party bureaucrat with no formal background in law， Zhou holds a law degree and has extensive experience on the bench.

Symptoms

After assuming his new role， Zhou immediately launched measures to address the problems Xi and other top Party officials have highlighted when discussing Chinese justice.

Wrongful convictions， a widely-publicized issue in recent State media reports， was top of his list. In various meetings， Zhou and his deputies repeatedly advocated respect for the principle of presumption of innocence.

From late March to early July， four cases of wrongful conviction involving 13 people， most of whom had already served lengthy prison sentences， were overturned after decades of appeals and formal complaints. China’s judiciary， previously famous for its reluctance to admit wrongdoing， appeared to be trying out a new tactic.

The authorities followed up with attempts to increase transparency， another demand made by the central authorities. For example， court documents are now being released selectively online for public perusal. During the trial of infamous former Politburo member Bo Xilai， the court released edited extracts of the proceedings through its official microblog account. While only a tiny gesture， this marked an unprecedented level of openness for a highly politicized trial.

As it has in other areas of the government， many believe the Party’s ongoing， if perennial， anti-corruption drives will also target the courts system. From April until October 2013， the Supreme People’s Court organized a series of consultations with legal experts and lawyers on a variety of issues， including wrongful convictions， defendants’ rights to counsel and corruption within the judiciary.

Gao， the criminal lawyer， attended four of these meetings. According to him and other participants， Zhou is trying to establish a“united front” with legal experts， in pushing for deeper and furtherreaching reform. “He [Zhou] talked a lot about establishing a professional community of legal experts and lawyers，” Gao told NewsChina.

It has long been agreed in China’s legal circles that the lack of independence in the judiciary， which remains subject to political intervention from the organs of the State to which it ultimately answers， has undermined the entire justice system.

Under the current institutional arrangement， China’s entire judiciary is subject to the Party’s Politics and Law Committees. Under previous administrations， the Politics and Law Committee was often chaired by local police chiefs， weakening the judiciary in favor of the police.

After assuming power， the new leadership conducted a series of personnel reshuffles in politics and law committees at the provincial level. Now， only four of China’s 31 provinces， regions and municipalities have retained politics and law committees chaired by police chiefs. In 2010， this number stood at 14.

Root Causes

On October 28， the Supreme People’s Court launched a directive on “improving judicial justice.” Aiming to “ensure the court can conduct trials independently.” Proposed reforms were also highlighted during the Party’s recent Third Plenum.

The Court’s directive pledged that pilot reforms will be primarily launched in five areas - Shaanxi， Guangdong， Zhejiang and Jiangsu provinces as well as in Shanghai， though no details as to what these reforms would entail were released. State media chose to focus on“de-localization” and “de-bureaucratization” of the court system. Currently， courts at provincial and county level are both funded and staffed by local government personnel， making them subject to political intervention. Legal experts have proposed reforms to promote judicial independence by putting budget approval and appointments under the auspices of provincial and central officials few have dared to suggest a separation of the judiciary from the Party apparatus.

According to Professor Zhang Weiping， the centralization of budgeting and appointments， an unpopular measure among local governments， will be tricky to implement， requiring sweeping and unprecedented changes to existing practices which threaten the interests of many powerful people.

Bureaucratization， however， is seen as the toughest nut to crack. Under the current court system， court officials can overrule verdicts made by lesser officials in any case， regardless of their level of familiarity with its details. Many examples of a higher authority simply dictating the outcome of court cases have been reported in recent years.

“A judge’s decision has to be approved by presiding judge and director of the court before a sentence is passed，” Zheng E， director of the High Court of Guangdong Province told NewsChina. “The result is that judges who are responsible for a case often do not have the power to make a final decision； whereas judges who do not directly follow the case， but outrank the presiding judge have the final say.”

In a pilot reform launched in July 2012 in Shenzhen city’s Futian District， court directors and mid-level presiding judges only retain the power to assign cases， not to make judgments. When panel verdicts are required， the majority decision is upheld， regardless of the relative ranks or levels of familiarity with the case of each panel member.

According to a source close to the leadership speaking on condition of anonymity， the Supreme People’s Court has submitted a proposal which would deprive court officials of the power to intervene in cases for which they are not directly responsible. “It has led to objections from many court officials，” the source told NewsChina.

It remains unclear how the power structures between courts of different levels will be rearranged， as overhauling the existing hierarchy appears unlikely.

Political Significance

In discussion of its proposed reform， the court has refrained from using the term “judicial independence，” which has overtones of a judiciary which does not answer to a higher authority， instead using the term “independence of trial.” This has led many to state that a complete overhaul of China’s legal system will not be undertaken， simply because the opposition would be too great. The Communist Party has resoundingly rejected even discussion of the separation of the country’s executive， legislative and judicial branches， a move which it views as a stepping stone to fully-fledged Western-style democracy.

This caution reflects the central leadership’s attitude to social stability. By reforming the judiciary without overhauling the entire legal system， the central leadership aims to restore credibility in time to re-establish the court system as a workable means to resolve localized disputes before they escalate into crises. This is in line with current Party thinking which sees the judiciary as an extension of law enforcement， rather than a forum to uphold citizens’ rights， and certainly not a body with the power to supervise the government itself.

In the past， the central leadership has relied on local governments to resolve their own disputes. In 2005， it adopted a rating system to evaluate the performance of provincial and local governments by pegging assessments to the number of petitions filed against officials. This had predictably disastrous results， with local governments diverting their resources to intercepting and silencing petitioners on their way to Beijing， rather than addressing their actual grievances. There are rumors that this evaluation system is now on the central government’s hit list.

But with rising social tension and growing public distrust of the legal system， judicial reform， no matter how sweeping， has a long way to go to restore public confidence in a system the general public have always viewed as being biased towards the interests of the few.