Courting impartial judges

PUBLISHED : Thursday, 06 October, 2005, 12:00am
UPDATED : Thursday, 06 October, 2005, 12:00am

In a rare move, the Supreme People's Court last week issued a circular to local courts across the country, reminding them that they are not part of the bureaucracy and should remain impartial in adjudicating local cases.

Specifically, it said that local courts should not take part in enforcing administrative laws on family planning, tax collection, environmental protection and city management, which should be the job of the executive authorities.

A report in the China Youth Daily quoted the vice-president of the Supreme People's Court, Huang Songyau , as saying that some local leaders of villages and towns regarded the judiciary as one of their subordinate departments.

'They direct the work of the courts without authorisation, wantonly use judicial officers and apply the coercive authority of judicial organs to carry out the work of the executive administration,' he said.

Mr Huang said that, under the country's political system, the job of the executive authorities was to administer, while the judiciary's role was to adjudicate. 'Putting the judicial and executive authorities together to undertake activities that are inconsistent with the nature of judicial work is illegal,' he added.

Peking University law professor Jiang Mingan noted that once the court took part in enforcing the law, it would not be capable of playing the role as adjudicator in settling related disputes.

It is interesting to note that Mr Huang described the issue as one about the executive and judicial authorities doing what they were separately authorised to do by the constitution. He did not use the phrase 'separation of powers'. Indeed, the mainland does not endorse the concept of separation of powers, whereby a system of checks and balances exists among executive authorities, the legislature and judiciary.

The Chinese constitution provides that the National People's Congress is the highest organ of state power, to which the State Council, Supreme People's Court, Supreme People's Procuratorate and Central Military Commission report. In practice, however, the ruling Communist Party controls all these institutions by appointing its members to key positions, and is a law unto itself.

Under such a set-up, the most senior party member at the local level, who is usually the village or town chief, is the de facto 'king'. It is no wonder that these local chiefs regard the local courts as part of their administration, and judges as their underlings. It remains to be seen if the Supreme People's Court's order will stop local governments from illegally asserting their powers in this way. The circular made no mention of other measures that would help local judges in resisting pressure from local cadres. In a country with thousands of years of history of local officials doubling as magistrates, asking local judges to assert their independence is not as easy as in countries where the rule of law and separation of powers are second nature. Moreover, the funding for local courts comes from local governments.

What if funding for local courts were to come from non-local sources, and judges were assigned by higher authorities from outside? Such a system of forestalling local interference has indeed been proposed by various mainland jurists.

They say that an effective way of extricating the local courts from the control of local authorities would be to set up regional judicial districts that cut across geographical boundaries. Unfortunately, there are no signs of this proposal being adopted. For, as long as the status quo continues, the chances of local courts saying 'no' to directives from local governments remain low.

C. K. Lau is the Post's executive editor, policy