After the Third Plenum, there were hints that China might seek to overhaul its justice system. The Third Plenum communiqué, as translated by China Copyright and Media, stated that “to construct a rule of law country, we must deepen judicial structural reform, and accelerate the construction of a fair, high-efficiency and authoritative Socialist judicial system, safeguarding the people’s rights and interests.” The more detailed report, issued a few days after the communiqué, specifically called for local judicial systems to be granted more autonomy from local governments. The report promised that the government “will explore ways to establish a supervision system that properly separates regional government and the judiciary below the provincial level.”
While this particular reform was largely overshadowed by flashier promises to end reeducation through labor and reform the one-child policy, it did excite some China watchers. Li Daokui, the director of the new Schwarzman Scholars Program at Tsinghua University, told the Wall Street Journal that the promise of judicial reform was the most notable aspect of the Third Plenum. “The rule of law is gaining traction,” Li said. Rocky Lee, the Asia managing partner at law firm Cadwalader, Wichersham & Taft told the South China Morning Post that the change was “a step towards the possibility of a separate and independent judicial system, so that laws can be uniformly applied without bias.”
On the other hand, Joseph Cheng Yu-shek, professor of political science at the City University of Hong Kong, told SCMP that the changes would be mild. “Whatever autonomy the judiciary and procurators have will be limited,” Cheung said. “Party leadership will be maintained.”
Xi Jinping has confirmed Cheung’s take, making it clear that courts still remain accountable first and foremost to the Party. A recent article on Xinhua summarized a speech Xi made at a political and legal work meeting in Beijing. The first sentence dispelled any doubt about Xi’s priorities: “President Xi Jinping has called for a greater role for the Communist Party of China (CPC) in guiding the country’s political and legal affairs.”
Yet Xi noted that “promoting social justice and equality” is the “core value” of China’s work on its political and legal system. Xi paraphrased the Third Plenum communiqué by calling for “the establishment of an impartial and authoritative socialist judicial system.” The remark notes the two qualities that are currently seen as lacking in China’s courts: impartiality and authority. The problem of corruption (along with close ties between local Party leadership and the courts) has contributed to wide-spread perceptions that China’s courts do not give out fair judgments according to the law. There is also concern that the courts lack enforcement authority: that even if they should rule against powerful interest groups, the vested interests could just ignore the ruling. Xi has all but legitimized these perceptions by publicly stating the need for a justice system that is both “impartial and authoritative.”
Importantly, though, Xi’s ideal judicial system is also “socialist” — in other words, controlled by the Party. The theme of Xi’s speech was the need to strike a balance between “stability and people’s interests” and “vitality and order.” On the one hand, the Party will never give up its control over the legal system, lest this lead to a collapse of the one-party system. On the other hand, however, the government recognizes that there is a need for a court system that is seen as providing an impartial application of the law. “People’s demands for their lawful interests must be properly handled … The position of the law in solving conflicts should be strengthened,” Xi said.
In reforming the justice system, Xi walks the same balance as in his anti-corruption drive. He wants to address public complaints over a broken system without significantly changing the way the system works. It seems, in effect, that the reforms for the courts will be initially an extension of the anti-corruption campaign. Xi demanded the officials be held responsible “for any interference in the judicial process” and insisted on an end to “power abuse, wrongful judgments” and other evidence of corruption in the judiciary system. Specific reforms are already underway. Stanley Lubman, author of The Evolution of Law Reform in China: An Uncertain Path, wrote for the Wall Street Journal that Chinese courts are working to increase their transparency, posting “judgment documents” online and using social media to broadcast corruption cases.
However, the bottom line remains the same: the courts are a tool for the Party. Transparency with the end goal of decreasing corruption is one thing; releasing Party control of the courts is another thing altogether. “All political and legal workers should maintain absolute loyalty to the Party,” Xi said. This same ideology was at work in 2012, when China created a new requirement for lawyers to swear an oath of loyalty to the Party before receiving their licenses. This sends the clear message that the Party controls the law, not the other way around.
“Ensuring social stability” remains the major priority for China’s leaders. Xi called it “the basic task of the country’s political and legal work.” In actuality, ensuring social stability usually boils down to protecting the interests of the Party. Yet as Xi knows, without a functioning judicial system to ensure the rule of law, social stability is in jeopardy. Thus, as in many other areas, the Party seeks reform to the extent necessary to keep China stable — and not an inch further.