The release of China's white paper on judicial reform could not be more timely. Calls for change are ringing loud as the Communist Party prepares to hold its 18th national congress. The white paper's release this month places judicial reform squarely at the heart of political reform.
Judicial reform will strengthen China's rule of law. Not only is it necessary for political reform to work, but it also provides the legal safeguards that would protect reforms in other areas. The flagrant abuses uncovered in the cases of Gu Kailai, Wang Lijun and Bo Xilai bring home the critical importance of the rule of law.
Judicial reform is complicated, but important to judicial independence. As the white paper says, the rights of People's Courts and People's Procuratorates [prosecutors' offices] to exercise adjudicative and procuratorial powers independently and impartially in accordance with the law should be safeguarded. These rights are the foundation for the rule of law, as provided under the constitution and related laws, and also a key element for judicial independence on the mainland.
The judiciary is the final safeguard for people seeking social justice. Judicial powers are based on credibility, which in turn derives from judicial impartiality. This depends on the professionalism of judges and will increase lawyers' responsibilities.
According to legal principles, the rule of law empowers the judicial authorities to prevent the abuse of powers, privileges and discretion. Therefore, before judicial independence can exist, judicial powers should be free from manipulation and erosion by power and money. This is the bottom line of the rule of law.
But this bottom line has always been lost in China. While imperial autocracy existed in China for thousands of years, law was considered a means of proletarian dictatorship in the pre-reform era. Under the circumstances, the tradition of rule of law was lacking and the concept of it was very weak. Things like this were often heard: "When a People's Daily editorial is so powerful, what is the use of so many laws?" or "Procuratorial organs ought to make arrests and prosecutions at the will of party committees".
While these are biased opinions and assertions, the call by lawyers and scholars for independent judicial powers were regarded as subversive bluster. Following the Cultural Revolution, people started to see the importance of the rule of law, and advocates of reform and the opening up proposed developing democracy and improving the legal system.
The legal system has been shaped by 30 years of reform. While the days of there being no law to depend on have long gone, evasion of laws and lax enforcement are still common. This is because judicial independence is not well respected. Because of this, there have been cases of local municipal committees and governments helping public security officers force the accused to confess in court; judges succumbing to higher authorities and dismissing defence lawyers; and local courts helping local government officials force residents out of their homes.
The Bo case illustrates the serious consequences of the absence of independent judicial powers. Bo, as party chief of Chongqing, had a reputation for being tough on crime. The organisation of his government was unusual, with political and legal committees and even higher government officials co-ordinating with public security bodies, courts and prosecutors to supervise how cases would be dealt with.
As a result, police powers expanded, the system of checks and balances collapsed and people in power acted above the law. It was under these circumstances that Bo's wife became a murderer, former police chief Wang a protector of crime while Bo abused his power. In fact, the three literally comprised the most powerful triad gang in Chongqing.
In the wake of Bo's case, President Hu Jintao underscored the importance of the rule of law in national and social governance at a meeting on July 23. Premier Wen Jiabao backed this with a call to develop socialism, democracy and the rule of law as well as the protection of social justice on September 29.
This showed that the party was determined to make China a country that respected the rule of law and would develop the methods to achieve this. It was, in short, a call for judicial reform. During the 16th party congress a decade ago, strategic efforts were made to forge ahead with such reform, and achievements have been made, despite twists and setbacks.
Following this upcoming congress, we should expect the central government to continue to propel economic, political, cultural and social reforms, in which judicial reform will play a crucial role.
While the white paper has pronounced targets for judicial reform, law professor Ji Weidong has proposed a systemic approach to how reforms can help a government uphold the rule of law. This involves making the judicial authority independent and superior to the executive authority. Its role would be to safeguard the constitution, scrutinise legislative and executive authorities and rectify their mistakes.
Ji's well-planned approach sheds light on the top-level design and overall planning of China's reforms in future, and should be given greater attention.
This article is provided by Caixin Media, and the Chinese version of it was first published in Century Weekly magazine. www.caixin.com