[New Article] Law's Relation to Political Power in China: A Backward Transition

By Jerome A. Cohen 

I've just uploaded on my SSRN my latest article—"Law's Relation to Political Power in China: A Backward Transition," which is slated to appear in Social Research: An International Quarterly in the Spring of 2019.

In the article, I examine China's legal progress and regress in recent years. While noting certain legislative and judicial advances, I discuss the continuing reality of the unchecked powers of the police, the plight of Chinese human rights lawyers and the newly established National Supervision Commission that significantly expands the Chinese Communist Party’s incommunicado detention system to all deemed to be government officials.  

I'm pasting the introduction below. Comments are welcome!

Law's Relation to Political Power in China: A Backward Transition

Social Research: An International Quarterly, forthcoming 2019

Jerome A. Cohen New York University School of Law


By and large, for the past dozen years, China’s professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earthshaking impact of Donald Trump’s election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China—with more than four times the population of the United States and almost as much economic strength—respects the “rule of law” at home and abroad.

This essay, building on the excellent analysis by Jean-Philippe Béja (Social Research: An International Quarterly, this issue) updating his earlier overview of the political situation in the Central Realm, will focus on China’s domestic legal situation. In doing so, we must be fully aware that the People’s Republic of China (PRC)—an increasingly oppressive Marxist-Leninist dictatorship—denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.

Keywords: China, rule of law, legal reforms, human rights lawyers, police powers, National Supervision Commission

China’s Chief Justice’s Extraordinary Statement: The Most Enormous Ideological Setback for a Professional Judiciary

Here is Flora Sapio’s original blog post about China’s Supreme People’s Court Chief Justice Zhou Qiang’s recent statement, which has provoked some unusual public opposition from China’s law reformers. Several aspects distinguish Zhou Qiang’s new and surprising statement.

It is much more threatening to the judicial cadres than the usual recitation about the importance of following the Party line. It focuses almost exclusively on “morality” and political reliability.  Its reference to heroic historical figures is surely bizarre and suggests that the recent investigation of the Supreme People’s Court by the Central Discipline Inspection Commission must have uncovered judges’ lack of reverence for Chairman Mao as well as their continuing desire for judicial independence from Party interference. This statement is the most enormous ideological setback for decades of halting, uneven progress toward the creation of a professional, impartial judiciary. It has already provoked some of China’s most admirable law reformers and public intellectuals to speak out in defiance, and, despite their prominence, I fear not only for their careers but also for their personal safety. 

I see Zhou’s statement as possibly necessary in order for Zhou Qiang, an enlightened and progressive Party leader,  to have his appointment renewed by the 19th Congress. There is immense dissatisfaction among many judges, especially the younger judges, over Xi Jinping’s restrictive, anti-Western legal values being imposed on them, contrary to their largely-Western-type legal education. This comes at a time when the courts are undergoing reforms designed to reduce the numbers of officials called “judges” by as much as 60% in order to make the remaining judges more of an elite, receiving greater prestige and compensation and a better reputation for competency. Many younger officials are leaving the courts, and the procuracy too, for work in law firms, business and teaching. They do not want to spend their lives applying legal principles opposed to their largely Western-type legal education.

Death sentence, sense of injustice and public opinion in China

Jia Jinglong

Jia Jinglong

The sense of injustice is spreading in China, and it is always fueled by cases that ordinary Chinese can grasp that violate their basic, widely-shared principles of fairness and humanity. This case blatantly demonstrates the inequality of the system. Another poor villager executed while well-connected murderers are often spared. Killing an official, however cruel or arbitrary his misconduct may have been, usually results in harsher punishment than killing a farmer. But much more is involved in Jia’s case. Housing demolition and its association with corruption and failure to observe prescribed acquisition procedures have sparked huge resentment and popular reactions, of course.

Moreover, there is often a denial of due process – fair criminal procedure – in this instance reportedly by not allowing competent counsel to take part in the defense in a timely manner and by denying defense counsel adequate time to prepare the defense.

In this case another aspect that should have been considered by the courts was the defendant’s mental state. Here, as in some earlier well-known cases, the accused had obviously been brooding for a long time about the unfairness of being deprived of his home without adequate compensation and, consequently, losing his anticipated marriage. Had this aspect been investigated by the court and psychiatric experts, as Chinese law makes possible, it might well have resulted in a diminished sentence. But Chinese courts are reluctant to inquire into the defendant’s mental condition if the victim was an important local official or a police officer..

There is also the broader question of the courts and public opinion. There have been many examples of bloodthirsty public opinion causing lenient courts to reverse their verdicts and there have been many cases of sympathetic public opinion successfully pressing courts to reduce harsh sentences. Sometimes the Party mobilizes the media in a preferred direction or at least allows a mass sentiment to develop. Chinese judges have sometimes discussed with foreign specialists the sentencing dilemmas confronting them and asked for advice and information about how other countries, including the U.S., deal with the problem.

This case may also add to the pressure in China for finding some effective way to allow ordinary people to have a say in the administration of justice. This problem has been important throughout East Asia - in Japan, South Korea and Taiwan, each of which has resorted to different solutions. In China’s Henan Province, the High Court at one point claimed it was introducing an American-style jury system, but that, of course, turned out to be misleading. China’s “people’s assessors” system, imported from the USSR in the ‘50s, has long been recognized as an insignificant and inadequate way to allow laymen to sit and vote with professional judges.

Finally, as the Jia case illustrates, public speech in China is, once again, being increasingly suppressed. Will people soon be afraid of even expressing themselves in private conversations, as during the Cultural Revolution?

Streaming of Chinese court trials

Xinhua just  reported that China has launched a website broadcasting court trials. Live streaming of court hearings, despite its obvious restrictions and selectivity, is a good step forward in expanding public awareness of China’s courts and of various legal principles and their application in daily life. This is part of an effort to increase popular respect for the judicial process, which has been widely mistrusted.

This welcome initiative should be understood together with the recent effort to increase the prestige of judges and prosecutors by winnowing out many official legal staff who bear the label of “judge” or “prosecutor” but who do not have the competence or seriousness to carry out the work expected. The idea is to create a judicial elite separate from the regular bureaucracy and to try to reduce the roles of corruption, “guanxi” (relationships), local protectionism and local Party and government influence upon court decisions.

Streaming will not only challenge prosecutors and judges to look and do better in action but also lawyers. It will be interesting, for example, if lawyers in the new spotlight will learn to cross-examine witnesses in court. But that will require changes in the system requiring witnesses to show up in court rather than merely give written testimony that allows them to escape cross-examination, which has often been called the greatest instrument for the discovery of truth in a legal system. 


P.S. I don’t believe the court hearing reported here ("China jails women's rights campaigner after torture in detention") was selected for live streaming!