The Fourth Plenum, Party Officials and Local Courts

The Fourth Plenum of the 18th Congress of the Chinese Communist Party (CCP) focused on transforming the country’s legal system and passed the Decision Concerning Some Major Questions in Comprehensively Moving Forward and Governing the Country According to the Law. The Decision calls for the transformation of several aspects of the Chinese legal system, including the reform of local courts and their relationship with local political authorities by making courts more autonomous from local officials. The Decision also aims to ensure a higher level of legal education for Party cadres, all while keeping the legal system in the hands of the Party.

The Party is working to reform the roughly 3,000 local-level courts in order to tackle two major issues: the corruption and inefficiency of the judicial process, as well as the supervision of local Party cadres. Beijing is particularly concerned with the increasing number of protests in the face of local courts’ inability to enforce citizens’ constitutional rights against corrupt local officials. This new Decision thus attempts to reduce corrupt officials’ ability to interfere with the normal legal process at the grassroots level. Yet the key question is if the central authorities can strengthen local courts’ autonomy from corrupt officials while maintaining political control over the legal system—and the answer appears to be that the Party is unwilling to truly attempt to find this balance.

A New Level of Courts Will Not Fix Local Issues

The Decision sets forth two measures intended to transform the existing court structure. First, the Supreme People’s Court (SPC) will establish “circuit tribunals” to run major administrative and civil cases that overlap more than one administrative region. These tribunals will render their ruling on behalf of the central-level SPC. The second reform will establish People’s Courts and People’s Prosecutorates, whose jurisdiction will transcend administrative districts and will be responsible for cross-regional cases. Contrary to the former, the latter implies the creation of a new set of courts, but the Decision does not clarify how these new courts will be integrated into the present system.

The creation of new tribunals and a new layer of courts to handle “cases that cross administrative regions” appears redundant, even though circuit tribunals shall handle “major cases.” It is not clear yet what kind of cases the tribunals will handle, but they will mostly likely be large commercial claims. These reforms are clearly less ambitious than what was proposed after last year’s Third Plenum, which focused on separating judicial jurisdictions from local government control. [1] This need for new jurisdictions suggests the Party may not believe possible, or support, the creation of an independent local judiciary free from the influence of corrupt cadres.

Toward Legally Skilled Officials

One of the new Decision’s main goals is to prevent local officials from interfering with judicial proceedings. It calls for the monitoring, recording and reporting of officials’ interference in legal cases. As noted by Ma Huaide, Vice President of China University of Political Science and Law, this is the first time the Party has vowed in an official document to hold Party officials responsible for such behavior (Xinhua, October 23). Currently, few details exist regarding the implementation of this oversight mechanism—in particular, there have been no public determinations for who will investigate and report the unlawful interference of local officials. Will it be in the hands of the local Political-legal committees, under the local Party apparatus? The Decision in fact reemphasizes these local committees’ coordinating function between judicial, law enforcement and Party institutions, suggesting there is little room for true independent oversight of local officials. While the goal is to put pressure on local cadres to prevent them from meddling in judicial cases, the law alone is evidently still not enough to constrain officials. The Party-state is merely trying to make interference more costly for its own cadres.

According to a district Party secretary, the main effect of the new Decision on local cadres’ work is that they “now have to understand the legal process,” which they could often largely ignore in the past (Authors’ Interview, Beijing, November 1). In response to this increased emphasis on cadres’ responsibility to uphold the legal system, local Party-state authorities will likely establish legal advisory teams, consisting of legal consultants and lawyers, to ensure their work follows the law. The Party will also place an increasing emphasis on educating officials on legal issues. The study of the constitution and the legal system will now be compulsory content within Party schools and Party study groups. Furthermore, according to the Decision, respect for the “rule of law” will become an important criteria for evaluating cadres’ work and will influence their promotion opportunities, in addition to the exiting evaluation system based on GDP growth and environmental impact, among others factors.

This ultimately boils down to a contradictory message: the Party must inject itself into the legal system in order to prevent its own cadres from interfering in the legal process. More than systematically preventing local officials from interfering, the Party has decided to resort to methods outside of the “rule of law” by focusing on improving cadres’ behavior. The Party’s continued lack of faith in the legal system can only reinforce citizens’ lack of hope in resolving their own issues through legal means.

A “Professionalization” of the Legal Profession Under Party Leadership

Chinese legal professionals’ lack of specialization has been an ongoing issue for the Party since the early 1990s. While there have been modest improvements over the years for judges’ training programs, new judges often lack practical legal experience once they finish their studies. This lack of practical experience, combined with an increasing workload—since 2007, the number of judges has remained largely the same while the number of cases has increased by 50 percent—has become both the cause and the consequence of numerous resignations among judges (Wall Street Journal, October 21).

The Decision highlights two seemingly contradictory propositions for professionalization. First, the Decision hints at establishing a new training system for judges. In addition to going further in establishing a uniform pre-appointment training system for judges and procurators, an official-like career track will be established. Junior judges will have to begin their career at low-level courts and then, depending on their performance, may be promoted to higher-level courts. Similar to other new programs under the Decision, there are few details regarding who will be in charge of evaluating and promoting judges throughout their career. At the same time, the Decision calls for developing opportunities for legislators, lawyers, officials and even military cadres to become judges. This appears to contrast with the express purpose of the judicial exam—to create professional judges and limit the nomination of inexperienced Party cadres. This contradiction between the increasing emphasis on judicial education while also opening the door to inexperienced Party officials makes it hard to imagine how these two initiatives will co-exist without the Party ignoring the compulsory working experience at the grassroots. This limited answer to professionalization suggests an uneasy compromise was reached during the Plenum.

The Decision also aims to standardize the handling of legal cases by limiting their media coverage. In recent years, local court cases have made national news after initially being shared on social media, creating a potential populist challenge to the judicial system. The Decision seeks to neuter this populist pressure by restricting media coverage and ensuring it conforms to the Party line. This represents a shift in China’s media policy, since media organizations could previously cover local legal proceedings without much Party oversight. This reform is in line with the Party’s other attempts to control public speech, including new regulations restricting information sharing on the Internet (Chinafile, October 9). Yet if this measure aims at a more standardized judicial system, the restriction of media coverage will make it harder to hold judges responsible outside the Party-state’s intervention and will therefore greatly reduce courts’ independence.

A Step Backward After the Third Plenum?

The Fourth Plenum’s Decision does not stand on its own; it must be analyzed as a follow up to its “sister decision” (zimeipian) from last year’s Third Plenum in order to fully understand its implications (People’s Daily Online, October 28). [2] The Third Plenum’s Decision called for the centralization of local courts’ and prosecutorates’ budgets and personnel management to the provincial level in an effort to weaken the influence of local officials over the judicial system. Currently, local judges are still mostly appointed and removed by local People’s congresses; hence judges’ job stability is highly dependent on local Party committees. This centralization was seen as the Third Plenum’s most promising reform for the development of the rule of law (see China Brief, March 20). Just after the Third Plenum, Meng Jianzhu, the central Political-legal commission’s secretary, called for a rapid implementation of this reform (People’s Daily, November 25, 2013).

Yet the Fourth Plenum’s Decision does not mention last year’s centralization effort, which could suggest a step backward for China’s legal reforms. Nonetheless, some comments from senior officials provide hope for its future implementation. Su Zelin, deputy director of the Central Legal Committee for the People’s Congress, asserted that the rationale behind the Fourth Plenum’s judicial reforms is to make courts more independent from local administrations, but also closer to the central government. Thus, according to Su, the Third Plenum’s reforms have not been abandoned, but rather changes in court reorganization will take time, as numerous legal questions still have to be addressed—the Constitution must be amended, along with the present People’s Court organization law and the judges’ nomination and dismissal system (People’s Court Daily, October 27). [3] This may explain the discrepancies between the decisions of both Plenums. The centralization reform for local courts’ and prosecutorates’ budgets and personnel management at the provincial level is in fact undergoing a trial phase, as it was part of a new Five Year Plan issued by the SPC this July and is in the pilot stage in Shanghai, Guangdong, Jilin, Hubei, Hainan and Qinghai (Xinhua, July 7; Beijing Times, June 16). [4]

Trading Local Independence for Dependence on Beijing

The Fourth Plenum Decision highlights the central government’s desire to limit local protectionism and make courts autonomous from local Party authorities. If the Party is able to fully implement the recent Decision, along with the Third Plenum’s reforms, local courts may very well become more responsive to grassroots concerns and more independent from local officials. However, for the time being, the inherent contradictions between the various reform efforts appear to inhibit genuine changes at the local level, and no clear timeframe for implementation has been provided. The transformation to a more influential local judiciary should be diligently monitored as a bellwether for greater legal reform at higher levels of the Chinese government. Still, independence from local governments comes at the price of recentralization and therefore an increased dependence on higher levels of the Chinese government.

Notes

1. The Third Plenum’s Decision called for exploring new “ways to establish a judicial jurisdiction system that is appropriately separated from the administrative divisions.” For the time being, every administrative level contains a court jurisdiction, which has no separate budget. This means local governments are in charge of all judicial expenses, including salaries and daily expenses. In practice, the Third Plenum’s proposal meant that courts’ budgets would have to be centralized or shared by more than one administrative district. Therefore, the local courts would, in theory, become freer from the interference of local cadres (People’s Court Daily, October 27).
2. The full name of the Third Plenum Decision document is “CCP Central Committee Resolution Concerning Some Major Issues in Comprehensively Deepening Reform” (Xinhua, November 15, 2013).
3. Article 101 of the Chinese Constitution and Article 35 of the Organic Law on judicial organization provide that local People’s Congresses have the power to recall presidents of People’s Courts and chief procurators of People’s Prosecutorates at the corresponding level. They also stipulate that judges are appointed and removed by the standing committees of the local People’s Congresses at the corresponding levels. Therefore, any change in the system for appointing the courts’ president, vice president and judges requires a reform of the constitution and organic laws (Constitution of the PRC; Organic Law of the People’s Courts of the People’s Republic of China).
4. The full name of the SPC’s July plan is the “Fourth Five Year Plan Regarding the Reform of People’s Courts” (Xinhua, July 9).