China's third plenum

Communist Party pledges to improve judicial independence, transparency - to a point

Legal reforms announced following the third plenum would separate local government from judiciary, and analysts say it may herald wider change

PUBLISHED : Friday, 15 November, 2013, 11:41pm
UPDATED : Saturday, 16 November, 2013, 11:04am

The Communist Party has pledged to try to improve transparency of legal proceedings and find ways to reduce the direct control of courts and prosecutions by local governments, according to the text of the third plenum's decisions released by Xinhua yesterday.

The announcement came three days after the party issued a communiqué following the plenum in which it pledged more independence for judges and prosecutors, and measures to "improve the protection of human rights in judicial procedures.

"[The party] will explore ways to establish a supervision system that properly separates regional government and the judiciary below the provincial level," according to the party document. While the wording is vague, analysts believe that the party is moving toward interfering less in run-of-the-mill court cases.

The plenum document also said it would improve trial procedures by appointing presiding judges who would be held responsible for verdicts and sentences. Currently, cases are decided by committees of judges, which are usually under the control of the party's local politics and law committees. The practice has long been blamed for the manipulation of court rulings and for breeding corruption.

Party general secretary Xi Jinping said it acknowledged there were grievances concerning the quality of justice and judicial credibility, according to a transcript issued by Xinhua of his speech to the party plenum.

The Legal Daily said yesterday that courts in the provinces and cities of Shanghai, Jiangsu, Zhejiang, Guangdong and Shaanxi had already received orders to improve the transparency of legal proceedings and judicial appointments.

Such reforms still fall short of the long anticipated "vertical" management system, under which courts and prosecutors would no longer report to local governments but to superior levels.

Analysts and legal practitioners yesterday said the Communist Party still wants the power to decide important court cases. But they said making local courts more independent would improve the quality of rulings and legal proceedings and usher in future reforms.

"Obviously the political and legal arm of the party committee will still be in charge of important cases," said Joseph Cheng Yu-shek professor of political science at the City University of Hong Kong. "Whatever autonomy the judiciary and procurators have will be limited. Party leadership will be maintained."

A Beijing-based lawyer, who requested anonymity, said real judicial independence was not possible, as the plenum document "means that complete separation of the two entities is too unrealistic".

Rocky Lee, Asia managing partner at law firm Cadwalader, Wickersham & Taft in Beijing, said that gradually removing lower courts from the direct supervision of local governments would lead to further court reforms.

"Essentially it is hinting that separation of the legislative and executive [branches] from [the] judicial branch is appropriate when it is to achieve the effect of having uniformity of law across China," he said. "This is a step towards the possibility of a separate and independent judicial system, so that laws can be uniformly applied without bias."

Cheng said: "The problems are with the lower levels. You have more corruption, disorderly conduct, and you have the problem of the judges and procurators lacking formal training and educational background and so on. So there is a consensus that that problem is much more at the lower levels."

Local courts and prosecuting bodies are financed by local governments, and their judges and prosecutors are chosen by local party leaders. Many presidents of local courts have no professional legal training.

"In practice, it is almost impossible for judges at local courts to make independent rulings by relying solely on the law and evidence, as they are subject to the party's political decisions," said Tong Zhiwei , a law professor at Shanghai's East China University of Political Science and Law. "The local government thus has a huge impact on rulings and certainly will not want to relinquish that power."