Part II – The Judiciary

In the first part of this set of papers, corruption in China was addressed. A case to counter this blight was made and, in the current paper, the ground is laid on a small, but not insignificant, step that can be taken to at least start the journey to clean up corruption.

 

Why is it necessary to address corruption? As consultants to industry, our clients, who, in the main, are successful business people, tell us two things that are high on their wish list:

 

• I wish to invest in a country where I don’t have to bribe everybody, and
• I want to invest in a country where the judges are not corrupt, where, if I have a legal case, I can expect justice in the courts.

 

The connection between corruption and the judiciary is undeniable.

 

One of the most central facts about China’s judicial system is it is intimately and inexorably intertwined with the party bureaucracy. In another way that is emblematic of the problem discussed is the courts are financed from local government sources rather than from provincial or central funds. It goes without saying, therefore, courts lean towards local pressures.

 

Judges lack life-long tenure and are hired only with the approval of the courts’ communist party’s political department and are subject to the discipline of the party organization.

 

Except for the most trivial of cases, judges normally operate in panels of three and there is a two-tier adjudication system. Once received by the filing court, the case is heard before a professional judge sitting with two people’s assessors. The assessors are chosen from a roster of approved laymen so as to give the proceedings a patina of democracy. As to be expected, the assessors take their cues from the judge in charge. A collegiate panel of three professional judges deals with decision-making on appeals to the second instance tribunal.

 

A case that can be received by the receiving clerk of the court can only be inscribed upon the authority of the local party. Hence, many cases can be refused to be received with no reasons offered. For a business seeking judicial remedies for their economic or social redress this is most frustrating.

 

A point that was raised above related to local interests. The protection of local interests may be crucial to the business dispute between a local company or individual and those from elsewhere.

 

In all of this, guanxi, the network of personal relations that judges find more compelling to satisfy than legal norms has to be acknowledged even if not eradicated. Hence, judges are ever heedful of maintaining social stability, i.e., take into account public opinion even if that requires the misapplication of substantive or procedural law.

 

 

In cases involving the author’s clients, during proceedings, blandishments of an influential or aggressive litigant, who threatens to take the matter to ‘people in Beijing’, have scuppered their plans. The presiding judge does not take kindly to having the case heard elsewhere, especially if it is a local individual who chooses to go to Beijing.

 

The pressures on judges come from many sides:

• Local government or party officials;
• Members of the local people’s congress;
• Members of the local people’s consultative conference {a.k.a. prominent residents};
• Judges from a higher court and
• Individual provincial or central party or government leaders.

 

Hence, the legal framework does not support the independence of the individual judge.

 

Quoting Sen. Marco Rubio, Chairman of the Congressional Executive Commission on China, ‘Local governments are the most significant source of external interference in judicial decision making’,

 

A possible two-pronged remedy for this would be to give judges life-long tenure, after a period of probation, and for the judge to have more real-life experience rather than academic achievements prior to being appointed to the bar. In this manner, the judge is more mature and less malleable.

 

The current system if far too entrenched to make radical changes in a short period of time without substantial resistance. The independence of the individual judge should be paramount and by making that person have tenure should alleviate the dependency of the judge on the local party machinery.